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BENCH AND BAE 



ov 



TEXAS. 

BY 

JAMES D. LYNCH, 

Author of " Heroes of the South,'''' '^ Kukhtx Tribunal,^^ " Clock of Destiny," 
*' Kemper County Vindicated," " The Bench and Bar of Mississippi.''^ 



•Tis not m mortals to command success, but 
We'll do more, Sempronius, we'll deserve it. 

—Addison's Cato. 



PUBLISHED BY THE AUTHOB. 



ST. LOUIS: 
NIXON-JONES PRINTING CO. 

18b5. 



Entered according to Act of Congress, in the year 1885, by 

JAMES D. LYNCH, 
In tne office of the Librarian of Congress, at Washington. 



Xivon- Jones Printing Co., 210 and 212 Pine Street, St. Louis, Mo. 



mi 



Invocation. 

ON BRING PRESENTED WITH A SWAN'S QUILL, 

Quill, that through the classic ages 
Glided o'er the polished pages, 
Moulding golden gems of song 
Which the years have borne along, 
Shedding pearly drops of rhyme 
All along the path of time, 
Lighting it with sparks that rose 
From the mind in song and prose, 
Long before the pointed steel 
Painted human woe or weal — 
Come thou now, faithful featherl 
Bind my wayward thoughts together, 
Smooth the roughness of my page 
In this harsh and steely age ; 
Let new light upon it dawn, 
And the music of the Swan — 
That death-chanting bird that bore thee, 
Swell its soothing strains around me. 
Through my rugged rhythms trill. 
Lured by thy soft charm, O Quill I 
And may knowledge from thy point 
Trickle, and its streams anoint 
My scrubby growth of word and thought, 
In its deep mysteries untaught — 
Save so much as to make me feel 
How little it doth yet reveal. 
Leave upon my page some trace 
Of good that Time can not erase. 
Some thought not yet to mortals given. 
Some new idea yet unriven 
From the mind, some gleam of love, 
Lighting, lifting man above. 



(8) 



PKEFACE. 



Biography is the anatomy of history. History tells us of 
man, biogrnphy, of men. But men do not know themselves, 
and how can others know them? To know one's self would 
be to know everything. All the branches of knowledge 
have their origin in the science of being, and, like meteors, 
flash along its firmament and lose themselves in its illim- 
itable expanse ; and for the mind to attempt to fathom itself 
is the mad butt of thought against the inconceivable — the 
push of airy nothing against infinity. 

jNIetaphysics, which the Scotch Highlander defined to be 
" when a man dinna know what another man says, and the 
other man dinna know what himself says," is the most in- 
comprehensible of all sciences, and biography is conceded 
to be the most difficult field of literature ; for the reason 
that there are so many uninterpretable elements in the com- 
position of mind and character that no one but the Creator 
himself knows the texture and coloring matter of human 
thought and the hinging springs of human action. Yet, 
biography is the most important of all studies, and of all 
the species of writing, the most worthy to be cultivated. 

History, with its monotonous compendium of facts, re- 
garding national progress, either in polity or science, 
ceases to satisfy the curiosity and spirit of research, which 
in this age seek the causes and ao-encies of achievement 
rather than the mere statistics of event; and to supply the 
wants of intellectual progress, it must weave into the dry 
leaves of fact a personal impression, and the varied colors 
of individuality. 

"Histories," says Lord Bacon, "set forth rather the 
pomp of business than its true and inward resorts. But 
the lives of eminent men, if they be well written, repre- 
senting individual achievement in the various spheres of 

(5) 



Q PREFACE. 

life, in which actions, both great and small, public and 
private, have a commixture, must necessarily contain a 
more true, natural and lively representation." 

Subsidiary to this universal desire to know the means and 
traits of character by which individual eminence is attained, 
they furnish incentives to emulation — examples of the pos- 
sibilities of merit, by which its qualities can be ascertained 
and measured, and the calculus of success eliminated; and 
this knowledge is a debt which every person who has attained 
eminence owes to his fellow-man. All biographies should 
be written that can impress the rising and future genera- 
tions with the rewards of merit and the value of exertion, 
and which shed light upon the path of effort. But none 
should be written which do not make us think better of 
their subjects than before, and the sentiment nil de mortuis 
nisi honum, is applicable to the living as well as to the 
dead. 

The author has been engaged nearly one year in the pre- 
paration of this work, but several months of that time were 
devoted chiefly to procuring sufficient encouragement to 
justify the undertaking ; and if Plutarch deemed it neces- 
sary to reside forty years at Eome in order to prepare him- 
self to write the lives of its eminent citizens, surely the 
author can claim, under cover of the disparity of circum- 
stances, immunity from any severe animadversion upon his 
shortcomings. 

The object of this work is to present to the world, and 
especially to the rising and future generations of Texas, a 
history of the eminent judges and lawyers who have built 
up and elevated the jurisprudence of the State; to preserve 
their memories and characters, to set forth the methods and 
measures of their success as examples and incentives to 
those who are to follow in their footsteps, and to show them 
how much can be achieved by energy, uprightness and 
skill. 

In selecting his subjects the author has occupied neutral 
ground. He has had no prejudices to subserve, no prefer- 
ences to promote, and no ties of obligation to draw him from 
the path of his own judgment. He has stood as Lord Coke 



PREFACE. 7 

says a juror should stand " as indifferent as he stands un- 
sworn." He has had no partiality for political distinction; 
for that is sometimes the least exemplary of all prominence ; 
nor have those selected for subjects had any agency what- 
ever in the matter. The selections were carefully made by 
the author, without constraint or influence, in conformity 
with the design of the work. He has been guided chiefly 
by the beams of eminence which flash from the judicial 
records of the State. 

It is true that persons in Texas, as elsewhere, have held 
high positions, who never ought to have held them; for 
the reason that they possessed no qualifications which en- 
titled them to such superficial marks of distinction over 
many others, often superior to them in merit, but less fer- 
tile in the methods of obtaining preferment. With such 
the author has no concern ; nor does this work profess to 
make mention of every good judge and skillful lawyer. The 
Texas bar will bear favorable comparison with any in the 
Union ; and there have been, and are now, many gentlemen 
in the State, whose professional qualities and characters are 
full worthy of the most meritorious mention in any work; 
but it has been the design of the author to embrace in this 
volume only those whose professional careers have been 
characterized by an established eminence, achieved by long 
and successful practice, and which have made marked im- 
pression upon Texas jurisprudence, and if any of these 
have been omitted it is not the author's fault. Coming to 
Texas an entire stranger, with no acquaintance with its 
jurisprudence, or with the customs of the country, the 
author undertook a diflScult task ; but he has been constantly 
encouraged by the most polished courtesy and kindness on 
the part of all with whom he has come in contact ; and 
to that kind-hearted and magnanimous gentleman, Maj. J. 
T. Brackenridge, of the First National Bank of Austin, he 
is particularly indebted for financial favors which greatly 
aided him in the preparation of the work. 

In the execution of his task he has found it difficult in 
many instances to obtain the data necessary to enable him 
to accomplish the object of the work, and the metaphysical 



8 PREFACE. 

poverty of language has often occasioned him perplexity in 
finding terms to express the multifarious features and varied 
shades of character. He would have included other de- 
ceased lawyers of the Republic and State, could he have 
obtained sufficient information in regard to them. But the 
corroding finger of time has already dimmed the records of 
their greatness and stilled the hearts upon whose tablets 
their virtues were inscribed, leaving only, here and there, 
a glimmer of those lights whose brilliancy kindled the rising 
glory of the State. 

With these inscriptions he feathers its wings and commits 
it to the flight of its destiny, and if it should return with 
the olive branch of favor, the author will be glad; but if it 
should be lost in the crypts of wasted eflbrt, he will still 
be contented with the memorial of its conscientious 
mission. James D. Lynch. 



CONTENTS. 



CHAPTER I. 

INTRODUCTION. 

PAGE. 

Genius — Its source — Its universal application — The certainty of 
its assertion — The law, its peculiar sphere — Fame the meed of 
genius — The common law a prolihc school of fame . , . 13-18 

CHAPTER II. 

A view of the laws and institutions of the Mexican State of Coa- 
huila and Texas —1824-1835 19-i.'5 

CHAPTER III. 

Origin of Texas jurisprudence — The judicial ordinances of the 
Consultation and Provisional Government — The judiciary system 
of the Texan Republic — Introduction of the common law and the 
civil code of Louisiana — Observations — Legislative modifica- 
tions — 1835-1845 26-33 

CHAPTER IV. 

Organization of the State government — Its judiciary establish- 
ment — Its blended system of jurisprudence — Common law, 
civil law, and equity — Peculiarity of its land laws — Marital 
rights — Rules of inheritance — Homestead and exemption 
laws — Its liberal educational system — Beneficence of Texas 
jurisprudence — 1845-1885 34-62 

CHAPTER V. 

The bench of the Republic and State — Eminent jurists, deceased: 
James T. Collinsworth — Thomas J.Rusk — John Hemphill — 
Anderson Hutchinson —Richard Morris — Wm. B.Ochiltree — 
Abner S.Lipscomb — Royal T. Wheeler — Geoi-ge F.Moore — 
.\. J.Hamilton — Lemuel D. Evans — Peter W. Gray — M. H. 
Bonner — S. P.Donley — Thomas H. Duval — Amos Morrill — 
M.D.Ector — C. M. Winkler — Benjamin C. Franklin — Rich- 
ardson A. Scurry —William S. Todd 63-184 

(9) 



10 CONTENTS. 

* 

CHAPTER VI. 

PAGE. 

The bar of the Republic and State — Eminent lawyers, deceased : 
J. Pinckney Henderson — R. M. Williamson — Wm. H. Jack — 
James Webb — Ebenezer Allen — James Willie — O. C. Hartley — 
Thomas H.Jennings — John A. Wharton — James W. Dallam — 
Elisha M. Pease — Wm. S. Oldham — H. P. Brewster —Thomas 
M. Jack 185-272 

CHAPTER VII. 

The State bench — Eminent living judges: Oran M. Roberts — 
Richard Coke —James H. Bell — Asa H. Willie — Thomas J. De- 
vine — John Ireland — Robert S. Gould — John W. Stayton — 
Charles S. West — Richard S. Walker — John P. White — Samuel 
A. Willson — James M. Hurt — A. S. Walker — George Clark — 
A. T. Watts— W. S.Delaney — E. B.Turner . . . .273-366 

CHAPTER VIII. 

The State bar — Eminent living lawyers : John W. Harris — James 
E. Sheppard — Frank Sexton — John H. Reagan — W. P. Ballin- 
ger — J. W. Throckmorton — John Hancock — John Sayles — 
N. G. Shelly — Richard B. Hubbard — Thomas N. Waul — A. J. 
Peeler — Jacob Waelder — Wm. M. Walton — A. W. Terrell — 
George Goldthwaite — N. W. Battle — M. D. Herring — Charles 
Stewart — Alexander White — J. M. Anderson — Thomas Harri- 
son— W. S. Herndon 367-532 

CHAPTER IX. 

Legislative data — The constitution of Coahuila and Texas — The 
Texas declaration of independence — Constitution of the Texan 
Republic — Articles of annexation 533-605 

CHAPTER X. 
Judicial data 606-608 



LIST OF ILLUSTKATIOI^S. 



FACES PAGE 

M. H. Bonner, portrait of 116 

E. M. Pease, portrait of 221 

Amos Morrill, portrait of 151 

John Ireland, portrait of 306 

J. W. Harris, portrait of 367 

T. N. Waul, portrait of 404 

N. W. Battle, portrait of 505 

M. D. Herring, portrait of 510 



(11) 



THE BENCH AND BAR OF TEXAS- 



CHAPTER I. 



INTRODUCTION. 

GENIUS — ITS SOURCE— ITS UNIVERSAL APPLICATION -^ ITS VARIED MANI- 
FESTATIONS — THE CERTAINTY OF ITS ASSERTION — THE LAW IT8 
PECULIAR SPHERE — FAME THE MEED OF GENIUS — THE COMMON LAW 
A PROLIFIC SCHOOL OF FAME. 

The definition of that intuitive principle or subtle quality 
of the mind, which we call genius, has never yet been 
formulated ; at least, it has never received an intelligent 
interpretation among men. Its source lies concealed in the 
unexplored recesses of human nature; nor is its presence 
known until, awakened by the touch of opportunity, it 
bursts from its gyves, and flashes upon the world with a light 
that illuminates the extending scope of its own vision. 

But whatever may be the abstract nature of genius, its 
qualities are readily recognized and its manifestations 
easily judged. Its course is upward and onward, and its 
flio-ht is bounded bv no definable horizon, while its zenith 
is hidden somewhere in the realms of eternal and untar- 
nished light. 

The application of genius is universal, and it has kindled 
its beacons along the highway of every sphere of life, 
penetrated the occult depths and obscure labyrinths of 
every science, and illumined a path for the advancement of 
every art. It is, indeed, the assignable coeflicient of all 
enterprise and the multiplicative exponent of all ])rogress. 

Nor is genius to be measured by its means of appliance. 
It perhaps required as much genius in Adam and Eve to 

(13) 



14 BENCH AND BAR OF TEXAS. 

patch their fig-leaf aprons as in the manufacture of the 
finest fabric of modern art, and as much in Noah to fit the 
timbers of the ark as in the construction of the proudest 
vessel that plows the waves of the western world. But 
from the summit of Ararat it winged its way with new- 
fledged pinions until it rested in triumph upon the pinnacle 
of Solomon's Temple, whence it gave sanctified utterance 
to the tongue of prophecy, and guided the pen of inspira- 
tion along the pages of Holy Writ. Yet, while the hand 
of genius was hewing and fashioning the pines of Lebanon 
into the columns of the great temple, with uplifted eyes it 
gazed into the starry canopy of heaven, caught the first 
glimpse of the star of Christianity, and, like a sentinel on 
the watch-tower, heralded every gleam of knowledge that 
flashed across its vision; and thence, with increased glow, 
it illuminated the pages of Grecian and Roman literature, 
and evoked those sparkling gems of thought whose corrus- 
cations will dazzle the eyes of the intellectual world to the 
end of remotest time. 

But in conformity with the vicissitudes of all human 
grandeur, the eyes of genius were at length closed by the 
cold finger of Fate; and, hurled by the hand of barbarism 
from the Tarpeian rock, it lay for ages hidden beneath the 
wreck and ruins of the Roman Emj)ire ; yet the spark 
glowed on until it slowly arose from the smouldering ashes, 
burst through the pall of the dark ages, and rekindled its 
blaze in the revival of learning. 

Yet, while the true course of genius is upward, it is not 
alwavs subordinated to the good of mankind, but is often 
perverted and prostituted to unhallowed purposes by the 
wayward passions that flourish in its train. While with 
pious sweat it could carve the lofty architraves and rear the 
temple of Jehovah, it could Avith sacreligious hand heave 
the huge rocks, and pile them upon the Tower of Babel, 
with mad desire to invade the very chambers of the Al- 
mighty. While it strung the pastoral lyre and tuned the 
shepherd's reed, it gave power to the destructive engines of 
Archimedes, and the fatal twang to the archer's bow ; and 
though it glowed in the natural laws of Kepler and the 



INTRODUCTION. 15 

civil code of Justinian, flashed through the glasses of 
Galileo, and illuminated the hallowed visions of Luther, it 
also glittered in the crown of Alexander, burnished the 
helmet of Cjesar, and flamed in the sword of Bonaparte. 

But whatever may be its mode of indication ; whether it 
sparkles in the eye of the astronomer, smiles upon the lips 
of the minstrel, frowns upon the brow of the misanthrope, 
decks the finger of the artisan, or emblazons the sword of 
the conqueror, the characteristics of genius are the same. 
It is only the purposes to which it is devoted, the motives 
by which it is guided, and the brilliancy of its manifesta- 
tions, that give to it any variety of character; and these 
are as varied as the channels of human thought, the fires 
of human passions, and the spheres of human action. It 
is the same principle that gives inspiration to the poet, 
conception of beauty to the artist, brilliancy of argument to 
the advocate, a lucid discernment to the judge, religious 
fervor to the devotee, and ingenuity to the midnight bur- 
glar and the common swindler. But in whatever direction 
its prowess may be exerted, its qualities are soon mani- 
fested . 

A man of genius is sure to assert his superiority in 
whatever walk of life he may direct his course, and whether 
it be for the good, or to the detriment of society, depends 
upon the passions by which it is actuated. " Such men," 
says Lord Bolingbroke, speaking of superior spirits in 
elevated positions, " either appear like ministers of divine 
vengeance, and their course through the world is marked 
by desolation and oppression, by poverty and servitude ; 
or they are the guardian angels of the country they inhabit, 
busy to avert even the most distant evil, and to maintain or 
to procure peace, plenty, and the greatest of all human 
blessings, liberty." 

But however certain may be the development of genius, 
its conspicuity is often governed by circumstances, and 
frequently trammeled by the presence of other and incom- 
patible qualities. Chief among these is timidity — a lack of 
courage sufficient to command upon all occasions the full 



16 BENCH AND BAR OF TEXAS. 

and clear exercise of the faculties, and to lay hold with 
proper alacrity and vigor upon great and rare opportu- 
nities. 

It was from this cause that Cicero failed in his defense of 
Milo. He did not have the courage to display his usual 
and natural eloquence in the face of prejudice and under 
the frown of power; and Lord Erskine, through his reluc- 
tance to encounter Mr. Pitt and Edmund Burke, lost the 
great opportunity of his life in declining the defense of 
Warren Hastings ; while, on the other hand. Lord Brougham 
wreathed his brow with immortal glory by his bold defense 
of the unfortunate Queen Caroline, in the face of courtly 
clamor and kingly opposition. 

Genius is often marred by passion and prejudice. If it 
would retain its lustre, though clothed in the tinsel of 
eloquence, its lips must be rouged with the carmine of 
kindness and complacency. The angry invectives of Achilles 
gained him no sympathy, while the soothing eloquence 
of Nestor swayed the minds of the Grecian host. It is 
true that a judicious appeal ad hominem sometimes produces 
a wonderful effect, as in the first oration against Catiline; 
but the eloquence of genius rarely distills from the pale 
lips of anger. The furious accusations of Tertullus pro- 
duced no formidable effect; but we are told that when 
Paul reasoned, the court trembled; and Lord Coke greatly 
impaired his efficienc}^ and injured himself in the ej^es of 
posterity, by his virulence on the trial of Sir Walter 
Raleigh when he condescended to thou him as a viper and 
traitor.^ 

Of all the schools of science, there is no one so prolific of 
the fruits of genius as that of the law. There is no sphere 



i When all argument failed him, Coke, then AttorneyGeueral, poured 
a torrent of abusive epithets upon the noble prisoner, and applied to him 
the term thou: "Thou hast an English face and a Spanish heart, thou 
traitor; for I thou thee, thou viper." A reference is made to this signifi- 
cation of thou in Twelfth Night, when Sir Toby Belch, in urging Sir 
Andrew Aguecheek to send a sufficiently provocative challenge to Viola, 
suggests; "If thou thou^st him some thrice, it shall not be amiss." 



INTRODUCTION. 17 

in life whicli presents so many necessities and motives for 
its exercise, and sucii a vast field for its development, as 
that of a lawyer. His constant intercourse with all sorts 
and conditions of men, and his frequent dealings with all 
the multiplied concerns of life, render him familiar with 
human nature, with all the workings of the human heart: 
its virtues and its vices, its strength and weakness, and the 
varied manifestations of its passions; and he necessarily 
becomes an expert in all the motives and a detective of all 
the springs of human action. 

The wide scope of his learning, the confidence reposed in 
his honor and integrity, his tutored conservatism, and usual 
freedom from the virulence of party and the malignancy of 
faction, constitute for the upright lawyer a just claim to be 
a leader of his fellow-men ; and when to this broad field of 
knowledge he brings the rare gift of genius, it, at once, 
places him in the line of distinction, and, with the aid of 
other and usually concomitant virtues, raises him, sooner 
or later, to a proud eminence of superiority, and procures 
for him a just title to the fee of fame. 

But while the bar offers the most illimitable scope for its 
exercise, it is the severest test, and most precise and exact- 
ing of all the measures of genius. It permits no successful 
charlatanism, no ephemera of superficiality and pretension, 
but subjects every candidate for superiority, every claimant 
to the quality of excellence, to a just and infallible esti- 
mation. 

A title to fame acquired under the eye of such close, 
competent, and penetrating scrutiny, amid such exacting 
circumstances, and under such a nice adjustment of qualifi- 
cations, is surely of an exalted character, and worthy of 
the highest admiration of mankind. Such fame is not of 
that kind which Pope would have us to believe to be a 
temple of ice melting away with each returning sun; nor is 
it a mere second life upon the breath of others, or post- 
humous inheritance founded upon custom or arbitrary rules 
of descent ; nor does its tenure depend upon any uncertain 
fine. It is the most certain and enduring of all earthly 
possessions, the iilti7na thule of human attainment, the 



18 BENCH AND BAR OF TEXAS. 

crowning glory of pre-eminent virtue, the meed of an im- 
mortal name. No ; 

Say not to me such greatness ever dies, 
Or Lethe's waves can over virtue roll; 
For glory has its realms beyond the skies. 
And there it copies off its earthly scroll, 
There sets its music to celestial chime ; 
And when its bright and proud historic page 
No longer flutters to the breeze of time, 
Beyond the reach of man's invidious rage, 
Its shafts will rise where time knows neither youth nor age. 

The vast and intricate system of common-law juris- 
prudence, with its comprehensive doctrines, its nice shades, 
subtle distinctions, and unlimited application, has been 
from time immemorial a fertile field of fame. It is there 
that we find those brilliant precedents of eminence, those 
illustrious examples of true greatness, which have aff'orded 
marks and models for the aspiration of every country, and 
of every age since the days of Runnymede. 

It is there that ambition may revel among the most gor- 
geous pictures of glory ; where genius can find an unlimited 
scope for the exercise of its utmost powers ; where freedom 
may find shelter from the pelting storms of oppression ; 
where the statesman can gather material for the fabric for 
the wisest government, and the patriot may clothe himself 
in more than Vulcanian armor for the defense of the liberty 
and honor of his country. 

It was in this field that Coke and Hardwicke, Mansfield, 
Eldon, and Burke, and a host of others no less renowned, 
erected their monuments of eternal glory. Notwithstand- 
ing the difficulties of the way, the height and ruggedness of 
the ascent, there is no sphere in life where so many hands 
are beckoning from the lofty eminence, and where so many 
footprints lead to the summit, as the law. Nor are these 
confined to the steps of the Inner Temple, or to England's 
soil, but up the same pathway, and to a no less degree of 
eminence, ascended our Marshalls, Storj^s, Taneys, Kents, 
Hemphills, Robertses, and others to whom it will be no 
disparagement to add, to a less degree. 



CHAPTEK II. 



A VIEW OF THE LAWS AND ADMINISTRATION OF JUSTICE OF THE MEXI- 
CAN STATE OP COAHUILA AND TEXAS — 1824-1835. 

It was not at first view deemed essential to the design of 
this work to extend its province and locate its beginning so 
remote from the present status of Texas jurisprudence as 
to embrace a notice of the Spanish-Mexican institutions 
which obtained in the State of Coahuila and Texas, but 
as they were found hirking among the elements of the judi- 
ciary system of the Texas Republic, and still clinging by 
analogy, at least, to tenures, marital rights and laws of in- 
heritance, it was thought best to notice them so far as they 
are qualified to shed light upon the origin of Texas juris- 
prudence. 

On the 15th of August, 1824, the constituent Congress 
of the State of Coahuila and Texas, in session at Saltillo, 
declared itself legally installed in conformity to the decrees 
relative to its institution, and qualified to exercise its func- 
tions agreeably to the constitutive act of the Mexican Con- 
federation and other Federal laws relative to the union of 
the two provinces. It then proceeded to decree the State 
of Coahuilla and Texas to be an integral part of the Con- 
federation ; and to be free, sovereign, and independent in 
whatever related exclusively to its internal administration 
and municipal government agreeably to the constitutive 
act and the Constitution of the United Mexican States. 

The judicial power of the new State was re-vested in the 
same authorities by which it was then exercised; and in 
the administration of justice they were required to be gov- 
erned by the laws then in force. The whole scope and 
power of jurisprudence was lodged in a court called the 
ayuntamiento, which was composed of the alcaldes, the 
sindicos and the regidores, all of whom were elected 

(19) 



20 BENCH AND BAR OF TEXAS. 

by the people on the first Sunday in December, annually, 
and entered on the discharge of their duties on the follow- 
ing Sunday. 

, The alcalde in his separate capacity combined the larger 
powers of our mayors and justices of the peace. The du- 
ties of the regidores assimulated to those of our aldermen, 
and the sindicos corresponded with recorders. These, sit- 
ting together, composed the ayuntamiento, which had juris- 
diction over the entire community. They were required 
to use staffs trimmed with black tassels as badg-es and dis- 
tinctions of office ; and every toAvn with one thousand in- 
habitants was entitled to have one of these courts, and this 
privilege was extended to all new towns of two hundred 
inhabitants, provided that there was no ayuntamiento al- 
ready established within eight leagues. 

These courts being of popular creation were not oppressive , 
and, possessed of unbounded judicial power they protected 
the interests of society until the introduction of military 
garrisons, in consequence of the discontent occasioned in 
Texas by its connection with the trans-Rio Grande prov- 
ince of Coahuila and its subjection to the distant capital at 
Monclova. 

Upon the abuse of power by the ayuntamiento, or by 
any of the judges or officers of that court, they were liable 
to be suspended by the Governor, with the advice and con- 
sent of his council, and he was required in that case to 
report the circumstances to the constituent Congress ; and 
in order to facilitate the dispensation of justice every citizen 
when chosen and having, in the opinion of the alcalde, no 
legal disqualification, was obliged to serve as a colleague 
judge in the inferior courts. 

By a decree of Congress, made in April, 1834, Texas 
was formed into a separate judicial district and a court 
established denominated "The Superior Judicial Court of 
Texas." The three departments, Bexar, Brazos and 
Nacoydoches constituted, respectively, three separate cir- 
cuits, and the Superior Court was composed of one supe- 
rior judge, one secretary, and a sheriff for each department, 
and in criminal cases it comprised a jury and prosecuting 



MEXICAN STATE OF COAHUILA AND TEXAS. 21 

attorney. This court held its sessions every four months 
at the capitals of the respective districts ; and for the trial 
of civil cases there was in every municipality an inferior 
court held by the alcalde or justice of the peace M'ith the 
aid of a jury. All causes, civil and criminal, were, with 
some limitations, triable by jury, which was chosen and 
impaneled in a manner similar to that in practice under 
the common law ; but it required the agreement of only 
eight of the twelve jurors to form a verdict. The panel 
was composed of thirty-six persons, from whom twelve 
competent jurors were chosen as prescribed by the com- 
mon law; and for the formation of juries in criminal cases 
all the ayuntamientos of the district were required to send 
up every year to the ayuntamiento located at the capital a 
list of all citizens of their respective municipalities who 
were qualified to serve as jurors. These names were placed 
in a box and the secretary, in the presence of the court, 
drew out a number which, being multiplied by the number 
of municipalities, should not be less than thirty-six, and 
these names were given to the subaltern sheriffs who sum- 
moned the persons to appear at the capital at the session of 
the superior court. These ceremonies were all conducted 
in secret and the names of the persons were not divulged 
until they were sworn. All the officers connected with 
the proceedings, as well as the persons summoned, were 
enjoined to maintain the strictest silence under penalty of 
the guilt of falsehood. 

The superior judges were required to be citizens in the 
exercise of full rights; to be lawyers by profession, and 
men of probity and science. They were appointed by 
Congress upon the nomination of the Governor, and could 
not be removed from office except for sufficient cause legally 
manifested and proven. 

The alcaldes, or primary judges of the municipal capitals, 
were by virtue of their office judges of inquiry and police, 
and were capable of the prompt investigation of crime and 
the apprehension of criminals. 

The juries were judges of all the facts In controversy, 
and of the law in regard to evidence under the instruction 



22 BENCH AND BAR OF TEXAS. 

of the court, but they were not obliged to conform their 
opinion to his views as to its weight and import; as to all 
other questions of law they were to be governed by his in- 
terpretation of their tenor. The facts established by the 
decision of the jury were considered conclusive, and could ■ 
not be controverted before any tribunal, except in case of 
corruption. 

In all criminal cases the accused were allowed to except 
peremptorily and without assignment of reason to twenty 
individuals of the panel. Objections for cause were 
numerous and the list of disqualifications extensive. Crim- 
inal trials were divided into three parts, termed vei'bal, 
sumario and ■plenario. The verbal method was employed 
for the correction and punishment of slight offenses. The 
trial sumario furnished process for the prompt investigation 
of crime, and for the discovery and arrest of the criminal, 
and the trial plenario provided means for the final resolu- 
tion of the case and the application of the penalty. 

All infringements of police regulations, contempt of 
process, and slight infractions of law for which the penalty 
did not exceed a fine of ten dollars or three days' impris- 
onment were punished by verbal determination of the judge. 

By the trial sumario the nature of a crime was ascer- 
tained and decided, the author discovered and arrested and 
sent, together with all the circLwiistances in writing, to the 
alcalde of the capital of the district; and from him an ap- 
peal lay to the. Superior Court, which subjected the appel- 
lant to the trial criminal plenario. In this court the case 
was tried de novo, and the accused could obtain process to 
bring in all his witnesses. He was furnished with a copy of 
the accusation sent up from the lower court, and with a list 
of the witnesses who would be summoned on the part of 
the State. He was permitted to be confronted by them,, 
and, by his copious right of exception, participated in the 
formation of the jury. 

The opening of the sessions of the Superior Court were 
verified by acts of punctiliious solemnity. All of the 
officers of the court and of the district were required to be 
present and arranged ia a ceremonious manner. The judge 



MEXICAN STATE OF COAHUILA AND TEXAS. 23 

opened the court with a discourse suitable to the occasion 
and directed chiefly to the instruction of the inferior judges 
and other officers of justice in regard to their duties and ob- 
ligations; and at the conclusion of his admonitions they 
retired to their respective jurisdictions, and the court pro- 
ceeded to the dispatch of criminal causes according to their 
grade and the order of their dates. After the examination 
of the witnesses both directly and in a cross manner, the 
sumario prepared by the primary judge was opened and 
read, upon which further testimony was admissible. This 
being concluded, both parties were required to plead ver- 
bally in establishment of the accusation and defense, after 
which the jury retired for deliberation. The verdict 
agreed upon by two-thirds of the jurors was reduced to 
writing, with all the reasons and circumstances which con- 
duced to the conclusion, and the minority were permitted 
to express their separate dissent in like manner. 

From the final sentence pronounced in the trial criminal 
plenario the only recourse for relief was the appeal of 
nullity. This appeal was required to be made within eight 
days, upon which the court transmitted a copy of its pro- 
ceedings to the Supreme Court of the State, which confined 
itself to the review of the trial in the lower court. This 
appeal could be sustained by proof of the bribery of a 
juror, or other gross misconduct, or by a misapplication 
of the law to the facts established by the jury, and in the 
latter case the proper sentence was passed in the appellate 
court. 

In all civil demands and claims for personal injuries the 
alcaldes were required to act as conciliators, and if possible 
to effect a settlement of the matter by arbitration ; and in 
all written petitions, in the institution of actions, the plain- 
tiffs were required to certify that they had attempted in 
vain a reconciliation with the opposite party. 

Neither of the parties to a suit was permitted to present 
but two written promotions of his cause. These were : the 
petition, answered by the replica, and the contestation, par- 
ried by the duplica. The proceedings in regard to execu- 
tions and sales were similar to those now in practice, but 



24 BENCH AND BAR OF TEXAS. 

no supersedeas intervened during an appeal to the trial civil 
2)lenario in the Supreme Court from the ruling of the court 
below upon the exceptions taken by the defendant to the 
sale of the property under the execution. The investiga- 
tion of these exceptions was called the trial executive. 

The proceedings in the Supreme Court Avere conducted 
with the most dignified solemnity, and the etiquette ob- 
served was impressive. The judge was required to dress 
himself in black, or dark blue, and wear a white sash with 
gold tassels. However superlluous and absurd these for- 
malities may appear in this age of reason and practicability, 
it must be remembered that among a people like the Coa- 
huiltexians, little inured to any fixed and regular restraint, 
fanaticised by their religion, and often beyond the reach of 
justice in the vast regions they inhabited, respect and obe- 
dience are largely attracted by a display of power and the 
glitter of appearance. By the Constitution adopted in 
1827 this system was planted in the organic law. 

The land commissioner, an officer appointed by the 
Governor, under the colonization laws of Coahuila and 
Texas, was a functionary possessing important powers. He 
was required to examine scrupulously the certificates of 
qualification for citizenship which all emigrants were re- 
quired to bring from the authorities of the place from 
whence they came, to prove that they entertained the 
Christian faith and were of good moral character, without 
which requisites they could not be admitted to citizenship 
in the colony. He administered to them the oath of alle- 
giance, issued titles in the name of the State to the lands 
which every qualified settler was entitled to receive from 
the government, caused all such lands to be surveyed and 
established by proper metes and bounds, taking care that 
there should be no conflict of titles. He laid out new 
towns, organized new alcalde districts, established ferries, 
presided at the election of the judges and other oflScers of 
the courts of ayuntamiento, inducted the new officers, and 
in conjunction with the impressario, or contractor of emi- 
gration, exercised a general supervision over the affairs of 
the colonies. The lands orranted bv the commissioner 



MEXICAN STATE OF COAHUILA AND TEXAS. 25 

were held under a contingent title, which could only be 
perfected by putting them in cultivation within the space of 
six years ; and lands thus acquired could not be alienated 
by the original settler until his title was made perfect. 
The alienation of those obtained by purchase from the 
government was coupled with the condition that the suc- 
cessor should cultivate them within the period obligatory 
upon the original proprietor, and any occupant could devise 
his possession conditioned upon the fulfillment of his 
obligations by the heir. 

Lands acquired by virtue of this law could not under 
any circumstances be transferred in mortmain or entail, 
and the general rules of inheritance were applied in all 
cases of intestacy. All public grants made to heads of 
families, whether to the husband or wife, constituted a 
community of interest between them, and inured equally 
to the benefit of both, and this jointure was maintained as 
to all property acquired during coverture, whether by 
purchase, by public grant, or by inheritance, if from a 
child or any person of equal degree of consanguinity to 
both. 

These qualifications of public grants, the rules regulating 
marital rights, and descent and distribution, descended to 
the Texas Republic and were modified only by the gradual 
introduction and amalgamation of the common law in its 
system of jurisprudence. 



CHAPTER III. 



ORIGIN OP TEXAS JURISPRUDENCE — THE JUDICIAL ORDINANCES OF THE 
CONSULTATION AND PROVISIONAL GOVERNMENT — THE JUDICIARY 
SYSTEM OF THE TEXAS REPUBLIC — INTRODUCTION OF THE COMMON 
LAW AND THE CIVIL CODE OF LOUISIANA — OBSERVATIONS — LEGISLA- 
TIVE MODIFICATIONS — 1835-1845. 

The first system of jurisprudence organized in Independ- 
ent Texas was derived in part from the same Spanish 
source as that which had hitherto existed. The Texas 
legislators recognizing the increasing demands of society 
for a more cultured and efiScient system of judicature than 
that which existed in the old Mexican State, sought for a 
higher standard and a more perfect model as a basis for the 
jurisprudence of the New Republic, and turned their atten- 
tion in the direction most accessible to their purpose. 

The Civil Code of Louisiana had been greatly improved 
by statutory enactments, and by the laws of the Spanish 
Partidas compiled in imitation of the Pandects, but which 
were proclaimed by the most learned civilians to be far 
superior to the general rules and abstract maxims of the 
Roman Code. Indeed the pliancy and practicability which 
they inspired into the body of the civil law were claimed 
to be as great an improvement upon that system as that 
which the commentaries of Littleton, Blackstone and Coke 
produced upon the common law of England. The Legisla- 
ture of Louisiana caused a portion of these laws to be 
translated in 1819, and introduced them as far as they were 
applicable into the jurisprudence of that State. 

This improved system was likewise adopted in part by 
an ordinance of the Provisional Government of Texas in 
1835, which ordained that the " Civil Code" and " Civil 
Practice" of Louisiana should be the rule in all cases of 
sequestration, attachment, or arrest, and should regulate 
these writs in form and effect. The same ordinance also 

(26) 



ORIGIN OF TEXAS JURISPRUDENCE. 27 

decreed that in all criminal cases and writs of habeas 
corpus the proceedings should be regulated and conducted 
under the rules and upon the principles of the common law 
of England. All trials were required to be by jury, except 
in cases of impeachment, and all penalties inflicted were 
made to conform to those prescribed in like cases by the 
common law. 

A provisional judiciary was instituted in each jurisdiction 
represented, or which might thereafter be represented, in 
the House of Consultation, to consist of two judges, desig- 
nated respectively the first and second judge, and the lat- 
ter was to act only during the absence or disability of the 
former. Th^se judges were to be nominated by the Coun- 
cil and commissioned by the Governor. 

Every judge thus nominated and commissioned was em- 
powered with jurisdiction over all crimes and misde- 
meanors known to the common law of England. They had 
power to grafit writs of habeas corpus under the rules of 
the common law, and writs of sequestration, attachment, 
or arrest, under the regulations of the civil law. Their 
powers extended to the cognizance of all matters testamen- 
tary. Their courts were repositories for deeds of convey- 
ance and all other matter of record, and they were ex officio 
notaries in their respective municipalities. 

All commissions were made " In the name of the People, 
free, and sovereign," and every officer of the Provisional 
Government was required to take and subscribe the follow- 
ing oath as a necessary qualification for office: " I do 
solemnly swear that I will support the republican princi- 
ples of the Constitution of Mexico of 1824, and obey the 
declarations and ordinances of the Consultation of the 
chosen delegates of all Texas in General Convention as- 
sembled, and the ordinances and decrees of the Provincial 
Government, and I will faithfully perform and execute the 
duties of my office agreeably to law, and to the best of 
my al)ilities; so help me God." 

This simple, system obtained but one year — from No- 
vember 1835, to the meeting of Congress in December 
1836 — when it was superseded by the intervention of the 



28 BENCH AND BAR OF TEXAS. 

laws which were immediately made in pursuance of the 
Constitution. This instrument greatly enlarged the exist- 
ing body of jurisprudence. It vested the judicial powers 
of the Republic in a Supreme Court and in such inferior 
courts as the Congress might, from time to time, ordain 
and establish. It divided the Republic into judicial dis- 
tricts, which were to be not less than three, nor to exceed 
nine; and provided for a judge for each district. It gave 
these courts exclusive original jurisdiction over all ques- 
tions in admiralty and of a maritime character, in all cases 
affecting ambassadors, public ministers, or consuls ; and 
in all capital cases; and conferred upon them original juris- 
diction in all civil cases when the matter in- controversy 
amounted to one hundred dollars. The district judges 
were empowered to conserve the peace throughout the 
Republic. It fixed the style of process to be " The Repub- 
lic of Texas," and required all prosecutions to be conducted 
in the name and by the authority of the Republic, and to 
conclude against its peace and dignity. 

The chief justice with a majority of the district judges, 
as associates, sitting in banc, constituted the Supreme Court 
of the Republic. This court possessed only appellate 
jurisdiction, which was conclusive within the limits of the 
Republic. It was to hold its sessions annually at such times 
and places as might be fixed by law, and no judge was per- 
mitted to sit during the trial of any case in which he had 
participated in the lower court. The judges of both the 
Supreme and District Courts were made elective by joint 
ballot of the two Houses of Congress. The Supreme 
Court of the Republic, thus vested with unlimited appellate 
jurisdiction, was perhaps the most comprehensive and inde- 
pendent tribunal that ever sat upon the bench of justice. 

The Constitution of the Repul)lic also required that a 
court should be erected in every county to be called the 
County Court, which was to be held by the justices of the 
county, who were to be commissioned by the President in 
such numbers as, in the opinion of Congress, the exigencies 
of law and order might require. 

It ordained that Congress should, as early as possible, 



ORIGIN OF TEXAS JURISPRUDENCE. 29 

introduce by statute the common law of England, with 
such modifications as the circumstances of society, in their 
judgment, might require; and it reaflSrmed the ordinance 
of the consultation, that in all criminal cases the common 
law should be the rule of decision. At this time the civil 
law of Spain was the common law of the land, and had 
fastened a firm grasp upon all tenures, upon descent and 
inheritance, and upon all marital rights ; and to remedy the 
inconveniences and save the conflicts which would surely 
arise upon the introduction of the common law, it was 
declared in the schedule that all laws then in force in Texas, 
and not inconsistent with the Constitution, should remain 
in full force and effect until they should be declared void, 
repealed, altered, or expire by limitation. 

This Constitution declared in terms of exact coincidence 
with the first Constitution of Mississippi, from which it was 
perhaps taken, that ministers of the Gospel, being, by their 
profession, dedicated to God and the care of souls, ought 
not to be diverted from the great duties of their functions; 
and that, therefore, no minister of the gospel, or priest of 
any denomination whatever, should be eligible to the office 
of the executive of the Eepublic, nor to a seat in either 
branch of the Congress. 

This discrimination and exclusion, it must be observed, 
was ludicrously superpolitic ; for it can not be conceded 
that there is less field for pastoral operations, or less need 
of ministerial services among congressional and legislative 

Do O 

souls than those of other communities ; but, on the other 
hand, human experience testifies that there is often great 
need of their presence and services among the souls of 
legislative assemblies. 

The Texas Bill of Rights which formed a Dart of this Con- 
stitution is such as could emanate only from a free and 
liberty-loving people. It is similar to that of Virginia and 
other states which followed her immortal declarations. It 
looked neither to the common law for guidance on the one 
hand, nor to the civil law for light on the other ; but it 
looked straight upward to the zenith of human liberty and 
human happiness. 



30 BENCH AND BAR OF TEXAS. 

Such were the organic provisions of the Consultation 
and the Constitution of the Texas Republic, in reference to 
the judiciary. It has been observed by a learned judge in 
phrase apparently trite, yet with vast depth of meaning, 
that laws should be understood in order to be obeyed. It 
may be said, too, with equal import that a comprehension 
of the machinery and character of those organized means 
of .obtaining rights and repelling wrongs, which we call 
courts, should be within the reach of everj-^ citizen. The 
upright man should understand the unfailing methods by 
which his rights are protected or recovered, and the unjust 
should know the certainty of the machinery that will hurl 
a sure-footed retribution upon his track; and as the author 
has bad occasion to remark in another work, the great 
danger in the establishment of the jurisprudence of a new 
and sparsely settled country lies in the effort to introduce 
complex systems of older commonwealths. Perfect laws 
do not spring forth from the fountains of wisdom like 
Minerva from the brain of Jove. The Confederate States 
present, perhaps, the only instance in the history of the 
world of a nation leaping from the womb of time clad in 
the full panoply of a perfect government. 

The first Congress of the Texas Republic assembled in 
December, 1836, and proceeded to enact the requirements 
of the Constitution ; and, by act of December 20, declared 
that the common law of England, as there practiced and un- 
derstood, should, in its application to juries and evidence, be 
followed by the courts of the Republic, so far as it might not 
be inconsistent with that act or any other law of Congress. 
On the 20th of December, it was enacted that the penalties 
of all offenses known to the common law of England, as then 
understood and practiced, and not otherwise provided for 
by the act, should be the same as prescribed by that law ; 
and by the act of January, 1840, it was ordained that the 
common law of England, so far as it was not inconsistent 
with the constitution and acts of Congress, then in force, 
should, together with those acts, be the rule of decision in 
all the courts of the Republic. But the act of February, 
1840, declared that the adoption of the common law should 



ORIGIN OF TEXAS JURISPRUDENCE. 31 

not be construed to introduce that system of pleading, but 
that the proceedings in all civil suits should be conducted 
as before — by the civil law method of petition and answer, 
involving as many issues of law and fact as the parties 
might choose to rely upon ; and this mixed and excerpted 
system in which the civil law governs the pleadings, while 
the common law furnishes the rule of decision, still obtains 
in Texas jurisprudence. At the session of 1840 it was 
also enacted that all laws in force in the Republic prior to 
the 1st of September, 1836, except the statute laws then in 
force, and except the Mexican laws, which related exclu- 
sively to grants and the colonization of lands in the State 
of Coahuila and Texas, and also such as related to the 
reservation of islands, lands, salt lakes, licks, salt springs, 
mines, and minerals of every description, were repealed. 
This act, save in regard to the subjects excepted, rooted 
out the Spanish-Mexican laws from the country, and re- 
moved most of the obstacles in the way of the adoption of 
the common law, which now, mingling with the statutes 
which sprang from the civil law, created that beautiful 
mixture of the best features of both s^^stems, which gives 
to the jurisprudence of Texas a certainty and swiftness in 
the pursuit of right which no wrong can baffle. 

In the formation of the constitutions of the Provisional 
Government and Republic, there were two parties in Con- 
gress — one composed of emigrants from the common-law 
States of the Union, which favored that system, and the 
other composed of native Texans and emigrants from 
Louisiana, who contended for the civil law. The system 
adopted was a compromise between the two, and this 
finall}' rested upon equity as a basis. 

So averse was Congress to any fetters of formality in the 
pursuit and administration of justice, and so impressed was 
it with the civil-law maxim — res adjudicata pro veritate 
accipilur — that soon after the passage of the common-law 
act of 1840, it enacted that the fictitious proceedings in the 
action of ejectment should be abolished, although it had 
never been a remedy in the republic, and that the method 



32 BENCH AND BAR OF TEXAS. 

of trying title should be by action of trespass, in which the 
real names of the parties should be used ; and in order to 
apprise the defendant of the nature of the suit, the plaintiff 
was required to indorse on his petition that the action v.'as 
brought as well to try the title as for damages. 

Proceeding with the organization of the courts in com- 
pliance with the provisions of the Constitution, Congress, at 
its first session in 1836, established in each county a county 
court with original and concurrent jurisdiction with the Dis- 
trict Courts over all suits and actions in which the amount 
in controversy exceeded one hundred dollars, but forbade 
that it should try any suit relative to the title of land ; and 
from this court an appeal lay to the District Court, when 
the amount in controversy exceeded two hundred dollars. 
In the organization of this court Congress created the office 
of chief justice of the county, an officer not provided for by 
the Constitution, and enacted that one of the justices of 
each county should be commissioned as such by the Presi- 
dent. The constitutionality of the office was held to be 
valid, but the Supreme Court deprived the President of the 
power of appointment, as being unconstitutional, and the 
office was made elective by the justices of the county. 

The chief justices of the County Courts were clothed with 
the powers of probate in their respective counties, and 
there was an unlimited appeal from them in this capacity to 
the District Courts. 

The County Courts had appellate jurisdiction over all 
cases arising in the justices' courts, and these were tried de 
novo without the intervention of a jury. Indeed, the 
County Courts had the same relation to the counties as the 
Supreme Courts had to the Republic. 

By the act of January, 1839, that portion of the act of 
December, 1836, conferring jurisdiction upon the County 
Courts, was repealed, and their original functions limited to 
the exercise of the powers of probate, the conservation of 
the peace, the supervision of roads and revenues, and to 
notarial matters, and, save which, all their former jurisdic- 
tion was transferred to the District Courts. But all appeals 



ORIGIM OF TEXAS JURISPRUDENCE. 33 

from the justices' courts were still made returnable to the 
County Courts, in which they were to be tried de novo with- 
out a jury. 

The act of December, 1840, empowered the chief justices 
of the County Courts to grant the same remedial processes 
in all matters originating in the justices' courts, as those 
issued by the district judges. But the act of February, 
1844, prohibited the chief justices of the county, and the 
associate justices from holding the County Courts, severed 
the connection of the associate justices with the probate 
courts, and substituted a board of county commissioners, 
consisting of four members, wiio, with the chief justice, 
composed the County Court. These commissioners were 
by the act of February, 1845, made elective biennially by 
the people, and their courts confined to semi-annual sessions. 

These provisions conclude the history of the judiciary 
system of the Republic. It had laid the foundation for a 
wise fabric of laws, had built the pillars of a great State, 
and out of the best material that could be procured, and 
was fully prepared to enter the rival lists for national 
greatness, and for a proud place among the nations of the 
world. But lured' by these attractions a tide of emigration 
poured in from the States of the great neighboring Republic, 
and every emigrant formed a strand in the cable which was 
eventually to bind the destinies of the two countries. 
Closer and firmer was the tie drawn. Greater and more 
intensified became the attraction; until, wooed by its 
smiling glow, its kindred light, and its superior glare, the 
Lone Star ceased its solitary twinkle and fell into the great 
orb of the American Union. 
3 



CHAPTER TV. 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT — ITS JtJDICIARY SYS- 
TEM — THE BLENDED CHAHACTEU OF ITS JURISPRUDENCE —COMMON LAW, 
CIVIL LAW, AND EQUITY — ITS CRIMINAL CODE — PECULIARITY OF ITS 
LAND LAWS — MARITAL RIGHTS — RULES OF INHERITANCE — HOMESTEAD 
AND EXEMPTION LAWS — LIBERAL EDUCATIONAL SYSTEM — BENEFI- 
CENCE OF TEXAS JURISPRUDENCE. — 1845 - 1885. 

On the 1st day of March, 1845, a resolution was adopted 
by the Congress of the United States expressing its willing- 
ness to receive the territory comprising the Republic of 
Texas as a new State in the American Union upon certain 
conditions, and authorized the President to negotiate with 
the Republic upon the question of annexation. In reply to 
this overture, the Texan Congress, by a joint resolution, on 
the 23d day of June, 1845, declared its consent that the 
people and territory of the Texas Republic might be erected 
into a new State, to be called the State of Texas, and an- 
nexed to the Union upon the terms offered by the United 
States Congress, and authorized the President of the Re- 
public to proclaim an election of delegates to a convention 
to be convened at Austin on the 4th day of July. This 
convention ordained and declared, in the name of the 
people of the Texas Republic, and by their authority, that 
it accepted the proposals, conditions and guaranties offered 
by the United States Congress, and proceeded to form a 
constitution for the new State, which was adopted on the 
27th of August. 

This (Constitution vested the judicial power of the State 
in one Supreme Court, in District Courts, and in such in- 
ferior courts as the Legislature of the State might from 
time to time ordain and establish, and authorized such juris- 
diction to be vested in cor])oration courts as might be 
deemed necessary, and be directed by law. 

C34) 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 35 

The Supreme Court was made to consist of a chief jus- 
tice and two associates, any two of whom formed a quorum. 
It was to have appellate jurisdiction only, which was to be 
coextensive with the limits of the State. The court, or 
any one of the judges, was empowered to gi-ant writs of 
habeas cor^ms, and, under regulations prescribed by law, to 
issue writs of mandamus and all other writs necessary to 
enforce its jurisdiction and compel a judge of the District 
Court to proceed to trial and judgment in any cause pend- 
ing in his court ; and the court was required to hold its ses- 
sions once every year, at not more than three places in the 
State, to be designated by law. 

In criminal cases and interlocutory judgments the extent 
of jurisdiction and the mode of exercising it were remitted 
to the regulation of the Legislature ; and, as that body 
failed to make any provision in the matter, it was held that 
no appeal lay in these cases, and that they could be revised 
only by writ of error. But it was decided at a later day 
that the right of appeal flowed from a higher source than 
statutory enactments, and that the exceptions, notwithstand- 
ing the inaction of the Legislature, could not be construed 
to depend wholly upon legislation, and thus contravene the 
spirit of the Constitution. The act of 1846 removed the 
grounds of conflict, and provided for general appeals in 
criminal cases, except on the part of the State ; but the 
code of criminal procedure subsequentl}^ gave an appeal 
to the State. 

The judges of the Supreme and District Courts were 
nominated by the Governor, and were appointed by him 
with the advice and consent of two-thirds of the Senate, 
until an amendment to the Constitution, adopted on the 
16th of January, 1850, provided for theii" election by the 
people. 

The Constitution required that the State should be 
divided into convenient judicial districts, with a judge for 
each, who should reside in the same, and should hold his 
courts at one place in each county at least twice in every year, 
in such manner as might be prescribed by law. These courts 
were vested with original jurisdiction of all criminal cases, of 



36 BENCH AND BAR OF TEXAS. 

all suits in behalf of the State, to recover penalties, for- 
feitures and escheats ; of all cases of divorce, and of all 
suits, complaints and pleas whatever, without regard to any 
distinction between law and equity when the matter in con- 
troversy amounted to one hundred dollars, exclusive of 
interest ; and the district judges were empowered to issue 
all writs necessary to enforce their own jurisdiction, and to 
exercise general superintendence and control over all in- 
ferior jurisdiction. And in the trial of all criminal cases 
in the District Courts the jury was required to fix the 
amount of punishment to be inflicted, and to assess the 
fine to be imposed, except in capital cases, and those in 
which the punishment or fine was especially designated by 
law. In the trial of cases in equity it was provided that 
either party should have the right of trial by jury, upon 
making application for the same in open court, and the 
proceedings were in such cases to be governed by the rules 
and regulations prescribed in trials at law. 

The Constitution required that a convenient number of 
justices of the peace should be elected by the qualified 
voters of each county, who should be commissioned by the 
Governor, and have such civil and criminal jurisdiction as 
might be conferred by law, and in these courts the right of 
trial by jury was vouchsafed in all cases in which the 
penalty was fine or imprisonment (except in cases of con- 
tempt); and in all cases an appeal lay to the court of the 
district. 

It also provided for the establishment of inferior tribu- 
nals in counties, whose functions should be, the appointment 
of guardians, granting letters testamentary and of admin- 
istration, the settlement of accounts of executors, admin- 
istrators and guardians, and the transaction of all business 
appertaining to estates ; and over all these matters the 
District Courts had both original and appellate jurisdiction. 

In the formation of these provisions by law, the Legisla- 
ture, by joint resolution on the 25th of April, 1846, 
authorized the attorneys of the plaintiffs or defendants, to 
file in the Supreme Court a written brief or argument 
which the judges were required to notice and treat as an 



ORGANIZATION OF THE TEXAS STATE GOVEIINMENT. 37 

appearance ; and by the act of the 12th of May the 
Supreme Court was prohibited from reversing on an 
appeal or dismissing any case for want of form, provided 
that there was suflScient matter or substance contained in 
the record to enable the court to decide the cause upon its 
merits; but if it was apparent that the appeal was taken 
for delay it should be dismissed ; and if the appellant was the 
defendant in the court below, ten per cent on the amount 
claimed should be added as damages, in addition to the 
other costs. 

This act also afforded relief to any person who by acci- 
dent or mistake had failed to file in proper time a transcript 
of the proceedings in the court below, by providing that it 
might be filed upon certain conditions, and the cause tried 
upon its merits at any time during the term to Avhich the 
appeal was returnable, even after the judgment of the lower 
court had been affirmed. The appellee was not required to 
file any answer to the assignment of errors or defects 
insisted upon by the appellant. It was sufficient if he filed 
a brief of his argument and the authorities on which he 
relied. All appeals were required to be tried upon a 
statement of facts agreed upon by the parties or their 
attorneys, and accompanied by a certificate of verity from 
the lower court, or, if the parties could not agree upon the 
facts as certified by the judge, or on a bill of exceptions ; 
or on a special verdict, or on an error of law either assigned 
or apparent on the face of the record. In the absence 
of all these grounds, the case was to be dismissed upon terms 
within the discretion of the court. By the act of the 30th 
of November, 1850, the Supreme Court was required to 
hold one session in every year in the City of Austin, one in 
the City of Galveston, and one in the town of Tyler; and 
the court while sitting at either of these places had power 
of revision over those appeals only which came up from 
the districts assigned to its jurisdiction; but if any cases 
argued or submitted were left undecided at the close of the 
term, it was competent for the court to decide it at the 
ensuing term, held at either of the above places, and the 



38 BENCH AND BAR OF TEXAS. 

judgment was transmitted for record to the place where the 
case was submitted. 

The Legislature, by the judiciary act of 184(), authorized 
the district judges to issue all remedial writs either in vaca- 
tion or during; the sessions of the courts without limit or 
qualification, except writs of mandamus, which could not 
be granted ex parte, nor, if peremptory, without due no- 
tice ; and they could be issued to an oflScer only in regard 
to duties purely ministerial, and which did not require the 
exercise of judgment and discretion. In addition to an un- 
limited original jurisdiction in all civil cases in which the 
amount in controversy amounted to one hundred dollars, 
they were clothed with all the powers incident to courts of 
oyer and terminer and general jail delivery. 

All suits in the District Courts were by this act to be begun 
by petition, which should be without distinction as to law 
or equity, and which should set forth all the allegations 
necessary to sustain the suit, together with a full statement 
of the nature and measure of relief desired. The defendant 
in his answer could plead as many matters either of law or 
fact as he might deem necessary to his defense. 

The act of 1848, organizing justices' courts pursuant to 
the requirements of the Constitution, conferred upon them 
jurisdiction and power in civil cases co-extensive in every 
particular with the District Courts when the amount claimed 
or the damao;es sought to be recovered did not exceed one 
hundred dollars ; but they could not determine finally any 
offense if a deadly weapon was used or attempted to be 
used. They could grant new trials upon certain conditions, 
and were required to have all cases tried by a jury in which 
more than ten dollars were involved. 

The act of 1856 legalized the use of the Spanish lan- 
guage in justices' courts in all counties west of the Gauda- 
lupe River, except Neuces, San Patricio, and Eefugio, when 
neither the justice or the parties understood the English 
language ; and when in any case either of the parties spoke 
the Eno-lish lan^uao-e alone, of which the justice was ignor- 
ant, the suit could be removed to the court of the nearest 
justice who was conversant with that language. 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 39 

The act of March, 1848, organized in every county of the 
State a county court, composed of one chief justice, to be 
elected by the people, and gave to it general jurisdiction 
over the police affairs of the county. These courts were 
empowered to take probate of wills, to appoint guardians, 
and to take jurisdiction over all matters testamentary and 
of administration, to supervise the accounts of executors, 
administrators and guardians, and to make settlement, par- 
tition and distribution of the estates of deceased persons, 
idiots, lunatics, and of persons non compos mentis, which 
they were required to exercise in the manner prescribed by 
law. This jurisdiction superseded the powers granted to 
the judge of probate in each county by the act of 1846. 
It absorbed and consolidated the former probate system, 
and all acts conferring conflicting cognizance were re- 
pealed. 

These courts were also authorized to levy and collect a 
tax for county purposes and to exercise the functions of 
land commissioners. 

In August, 1856, the Legislature created a court of 
claims, to be held in the City of Austin by a commissioner 
elected by joint vote of the two houses, whose duties were 
to ascertain the legality of all claims for money or land 
against the State. He was also to act as adjutant general, 
commissioner of the general land office, and also perform 
the duties of an auditor. In 1858 the duties and functions 
of his office were transferred to the controller, but the 
court was revived by the act of 1860. 

The Constitution of 1866 made but few changes of im- 
portance in the judiciary system of the State. Its amended 
features pertained chiefly to the re-establishment of the 
allegiance of the State to the Federal Union, upon the terms 
and conditions prescribed by the United States Congress. 
It vested the judicial power in one supreme court, in dis- 
trict courts and in county courts, and such inferior tribunals 
as the Legislature might see proper to establish. It au- 
thorized the oro;anization of criminal courts in the chief 
cities of the State, with county jurisdiction, under such 
regulations as might be prescribed by law ; and any judge 



40 BENCH AND BAR OF TEXAS. 

of one of these courts might preside over the criminal 
courts of other cities as the Legishiture might direct. 

The number of supreme judges was increased to five. 
They were required to be more than thirty-five years old at 
the time of their election. Their tenure of office was fixed 
at ten years, and their annual salary was not to be less than 
four thousand five hundred dollars. The Supreme Court 
was authorized to ascertain, by affidavit or otherwise, as it 
thought proper, such matters of fact as might be necessary 
to the exercise of its jurisdiction. 

The district judges were to be elected for the term of 
eight years, and should receive an annual salary of not less 
than three thousand five hundred dollars. They were to 
have original jurisdiction over all criminal cases, of all suits 
in behalf of the State, and of all suits, complaints or pleas 
whatever, without regard to any distinction between law 
and equity, when the matter in controversy should be valued 
at, or amount to, one hundred dollars exclusive of interest ; 
and in all cases, either of law or equity, involving matter 
to the amount of twenty dollars, the right of trial by jury 
was to be preserved. 

In addition to the probate and police powers of the ex- 
isting County Courts they were vested with jurisdiction over 
all misdemeanors and petty o flenses, as defined by law, and 
over all civil cases, without distinction of law and equity, 
in which the amount claimed should not exceed five hun- 
dred dollars exclusive of interest, which was to be exercised 
under such regulations, limitations and restrictions as might 
be prescribed b}^ law. 

The Constitution of 1875 greatly enlarged and expauded 
the judicature of the State and prescribed the establishment 
of that efficient, harmonious and beautiful system which 
now characterizes thejurisprudence of Texas. The judicial 
power of the State is vested in one supreme court, in a court 
of appeals, in district courts, county courts, commissioners' 
courts, in courts of justices of the peace, and in such others 
as may be established by law. 

The Legislature is authorized to establish criminal district 
courts,. with such jurisdiction as it may prescribe, provided 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 41 

that the district contains a city of thirty thousand inhabit- 
ants, which shall support the court. 

The number of Supreme Court judges is reduced to 
three — one chief justice and two associates — who are 
elected for six years by the people, and their qualifications 
are that they shall have attained the age of thirty years, 
shall have been practicing lawyers at the bar of the State, 
or shall have been judges of some court in the State, or, 
both together, at least seven years, and their annual salary 
is limited to thirty-five hundred and fifty dollars each. 

The Supreme Court has appellate jurisdiction only, which 
is co-extensive with the limits of the State; but it extends 
only to civil cases of which the District Courts have orig- 
inal or appellate jurisdiction; and it has power to make 
rules and regulations for the government of all the other 
courts of the State, and to regulate their proceedings. 

The Court of Appeals consists of three judges, any two of 
whom constitute a quorum, and the concurrence of two of 
the judges is necessary to form a decision. Their tenure 
of office, mode of election, qualifications, and compensation 
are the same as those of the judges of the Supreme Court. 

This court has appellate jurisdiction co-extensive with the 
limits of State in all criminal cases, of whatever grade, 
and in all civil cases unless otherwise provided by law, of 
which the County Courts have original or appellate juris- 
diction. This court, or its judges individually, may issue 
writs of habeas corpus, and all other writs, under regula- 
tions prescribed by law, that maybe necessary to enforce its 
own jurisdiction ; and the court is required to hold its ses- 
sions during the same time and at the same places desig- 
nated for the terms of the Supreme Court, and like that 
court it may exercise discretional power as to the manner 
of ascertaining facts necessary to establish its jurisdiction. 

The State is divided into twenty-six judicial districts, in 
each of which there is a district judge elected by the peo- 
ple for a term of four years, who shall have attained the 
age of twenty-five years, who shall have been a practicing 
attorney or a judge of some court in the State for the 
period of four years, and who shall have been a resident 



42 BENCH AND BAR OF TEXAS. 

of the district for two years antecedent to his election. 
The district judges are required to hold regular terms of' 
their courts at one place in each county of their respective 
districts twice in every year, and to each of them is assigned 
an annual salary of twenty-five hundred dollars. 

The District Courts have original jurisdiction in all crim- 
inal cases of the grade of felony, and of all suits, com- 
plaints and pleas whatever, without distinction between law 
and equity, when the matter claimed or involved in the 
controversy exceeds in value or amount the sum of five 
hundred dollars, exclusive of interest ; and the courts or 
the judges may issue writs of habeas corpus in felony cases, 
also the writs of mandamus, injunction, certiorari^ and all 
writs necessary to enforce their jurisdiction. These courts 
have appellate jurisdiction and general control in all pro- 
bate matters over the County Courts, and original jurisdic- 
tion and general control over executors, administrators, 
guardians and minors, under such regulations as are, or may 
be, prescribed by law ; and in the trial of all causes in the 
District Courts, whether founded upon law or equity, either 
party to the suit may, upon conditions, have his cause sub- 
mitted to a jury. 

The County Courts are presided over by county judges 
elected by the people for the term of two years. They are 
required to be well informed in the law of the State, and 
receive for their services such fees and perquisites as may 
be prescribed by law. 

These courts have original jurisdiction of all misdemean- 
ors, of which exclusive jurisdiction is not assigned to the 
justices' courts, and when the fine to be imposed exceeds 
two hundred dollars; and they have exclusive original juris- 
diction of all civil cases involving more than two hundred 
dollars and not exceedino: five hundred, exclusive of inter- 
est. They have concurrent jurisdiction with the Dis- 
trict Courts in all cases in which the matter involved-is more 
than five hundred, and not more than one thousand dollars; 
but they have no jurisdiction of suits for the recovery of 
land. They have appellate jurisdiction in all cases, civil or 
criminal, arising in the justices' courts, provided that in 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 4i> 

civil cases the iimount of the iiulgment appealed shall ex- 
ceed twenty dollars, exclusive of costs. All appeals are 
tried de novo, and if the judgment be for a sum not ex- 
ceedino; one hundred dollars it is final ; but if it be for 
more than one hundred dollars an appeal lies to the Court 
of Appeals. 

These courts have also general powers of probate, and 
the county judges have power, either in term time or vaca- 
tion, to issue writs of habeas corpus and all other remedial 
writs when their subject-matter or operation is within the 
jurisdiction of the court. They are required to hold a 
term for civil business at least once in every two months, 
and a term for the disposition of criminal cases once in 
every month; but they can dispose of probate matter either 
in term time or vacation. All indictments for misdemeanor 
found by the grand juries in the District Courts are to be 
certified to the County Courts if the jurisdiction of the case 
resides in them ; and all cases in the County Courts may be 
tried by a jury of six men upon conditions to be complied 
with by the party demanding it. 

Each county is required to elect four county commission- 
ers, who, with the county judge as presiding officer, have 
general police supervision of the county, and provide the 
required precincts for the election and jurisdiction of the 
justices of the peace. The latter have jurisdiction in all 
criminal matters in which the penalty or fine does not ex- 
ceed two hundred dollars, and of all civil cases with like 
limitation of the amount involved, of which exclusive 
original jurisdiction is not given to the District or County 
Courts. 

This system, which forms a part of the present organic 
law of Texas, not only furnishes ample and efiicient ma- 
chinery for the accomplishment of the object of all good 
governments — the protection of life, liberty and property ; 
but its various jurisdictions are so distinctly defined and so 
admirably adjusted that every relation of society can be 
readily assigned to the province of justice best adapted to 
its needs. 

In view of the larsre accumulation of business in the 



44 BENCH AND BAR OF TEXAS. 

Supreme Court and Court of Appeals, and to afford facility 
for the utmost expedition in those tribunals, the Legislature 
in July, 1879, established a commission of arbitration and 
award consisting of three persons learned in the law, and 
to be appointed by the Governor by and with the advice and 
consent of the Senate. This Court, styled by the act "Com- 
missioners of Appeals of the State of Texas," is required 
to hold its sessions at the same times and places as the 
Supreme Court. It had power under the creative act to 
prejudge and pronounce award upon all civil cases pending 
in or brought up to the Supreme Court or Court of Appeals, 
of which the parties interested, or their attorneys, might 
give consent in writing to the arbitration; and it was re- 
quired to report its conclusions and awards to the court 
from which the cases were taken in commission, accom- 
panied by a brief synopsis of the case and the facts which 
formed the basis of its opinion, and this became the judg- 
ment of the court. 

The acts of February, 1881, and March, 1883, author- 
ized the Supreme Court and Court of Appeals to refer any 
civil cases to the Commissioners of Appeals without refer- 
ence to the consent of the parties, and made it their duty 
to do so when necessary to promote an early disposition of 
cases pending before them. The opinions of the commis- 
sioners, when adopted by the court to which they are re- 
ported, are to be the published opinions of the respective 
courts. The Commissioners Courts are to be governed by 
the same rules and regulations that obtain in the Supreme 
Court. They may issue writs of certiorari in order to per- 
fect their records, and they may punish for contempt. The 
commissioners hold their office for two years, and receive 
the same compensation as the judges of the Supreme 
Courts. 

The into'oduction of the common law of Eno-land as to 
crimes, i3enalties, juries, evidence, and the writ of habeas 
corpus; and the adoption of the civil code and practice of 
Louisiana in regard to successions and remedial writs, have 
already been mentioned in the chapter devoted to the 
jurisprudence of the Texas Republic. The character, 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 45 

growth and development of this mixed and excerpted system 
will now claim attention. 

The entire system of Texas civil jurisprudence is founded 
chiefly upon principles of equity. The adoption of the 
common law by the act of 1840 as the law of the land, in 
conjunction with the ordinances of the Consultation and 
Provisional Government, and the acts of the Texas Con- 
gress then in force, in no manner disturbed the foundation 
upon which those acts and ordinances rested. The laws 
and institutions of the State ot Coahuila and Texas being 
colored, more or less, by the tenets and precepts of the 
Catholic religion, and being written in a foreign language, 
were distasteful to the people who had emigrated from the 
United States, and formed a large majority of the popula- 
tion of the Texas Republic. These laws, except such as 
related to land grants and reservations, were, as has been 
remarked, entirely abolished by the act of 1840; and such 
as remained unrepealed prior to that time continued to be 
confined to their original scope, and to bear the crude stamp 
of their Mexican origin. They formed no basis for the 
statute laws of the Republic. It is true that an analogy 
was maintained between them, but only such as was neces- 
sary to prevent the inconvenience and conflict which must 
always arise from sudden changes of law in regard to 
tenures, inheritance and vested rights. 

The Texas legislators being thus untrammeled by vassal- 
age to any system, and being free to weigh the truth of 
precedent, and to judge of the soundness of mouldy 
maxims and antiquated principles, were guided alone by 
that philosophy which, in their opinion, formed from broad 
and unbiased views, was best calculated to promote the 
interest and welfare of society. They revised, in a 
measure, both the common and the civil law, and plucked 
such features and rules of conduct from each system as 
they deemed perfectly adapted to the best regulation of 
society, and to the most perfect adjustment and protection 
of individual rights. 

They rejected the idea of separate courts of chancery, 
clogged with their antiquated forms and ceremonies, and 



46 BENCH AND BAR OF TEXAS. 

harnessed the whole system of equity to the simple machin- 
ery of law. Yet, strange as it may seem to a lawyer of 
the old school and orthodoxy, its scope and efficiency are 
in no wise restrained by the association; but, while it 
traverses concurrently with law the entire field of legal 
rule, it reaches its arms beyond the scope of the stricium 
jus of law, and seizes upon every artifice of cunning and 
deceit, parries the vis major of every event of accident 
and misfortune ; and embraces every civil right and civil 
wrong which find cognizance at the bar of human reason. 
Thus elevated above the crude and confused administration 
upon principles of imaginary conscience and supposed 
right, which characterized its subserviency to the rules of 
law, the equity of Texas jurisprudence sheds a benign 
influence upon every feature of society, and opens the door 
of justice to all the multiplied concerns of life. 

The act of 1840 especially excepted the application of 
the common-law rules of pleading to procedure in the 
Texas courts, and the civil-law methods by petition and 
answer in the mode still used in Texas judicature. The 
petition must set forth clearly, and in a logical and legal- 
ized form, without distinction of law and equity, the facts 
constituting the cause or action. The answer must in like 
manner present the grounds of defense, and may join as 
many issues of law or fact as the circumstances of the case 
will permit. It is not necessary for the plaintiff to deny 
any special matter of defense pleaded by the defendant, it 
bycing regarded as denied unless expressly admitted ; but 
when the defendant sets up a counter-claim, the plaintiff 
may answer in capacity of defendant, under the rules pre- 
scribed for defensive matter. The plea of reconvention, or 
counter claim, was obtained from the civil law, and it may 
be set up in all actions except those for unliquidated 
damages founded upon tort or breach of contract. 

The fictions of the common-law action of ejectment are 
unknown to Texas jurisprudence, and the method of ascer- 
taining title to realty is by an action of trespass to try title. 
This action may be accompanied and abetted by the civil- 
law writ of sequestration, which puts in issue the right of 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 47 

immediate possession. This writ delivers tlie property, 
whether real or personal, into legal custody, subject to 
replevin, until the title or right of possession is deter- 
mined. It may, upon proper affidavit, be issued to protect 
the property of married women during suits for divorce, 
pending the suits for either the title or possession of per- 
sonal property, and for the foreclosure of mortgages. It 
may also be issued to preserve property for the satisfaction 
of debts not due, if the affidavit of the plaintiff shows it 
to be necessary. It may be issued by any judge or justice 
of the peace, at the beginning or during the progress of 
the trial at any time before linal judgment. But it can not 
be issued in any case until the party seeking the remedy 
makes an affidavit in writing that he is the owner of the 
property upon whicii he invokes the operation of the writ, 
or of some interest in it, and is entitled to its possession. 

Common-law process has never been in use in the Texas 
courts, and the introduction of common-law terms did not al- 
ways import the rules of that system as to the matters in regard 
to which those terms are used ; hence the term scire facias 
is often used in reference to mere notice. Nor does the writ 
of certiorari possess here entirely the same features which 
characterize it under the common law. It is not considered 
a writ of right ; but rests solely in the discretion of the 
court, to be exercised upon principles of equity, except 
when it is invoked within two years by persons interested 
in the estates of decedents, or by those who have within 
that time been relieved of disabilities, to revise in the Dis- 
trict Courts the probate proceedings of the County Courts. 

The rules regulating marital rio;hts in Texas are of civil- 
law origin. The community interest subsisting between hus- 
band and wife, in all property acquired during coverture, 
except by gift, devise or descent ; the preservation of the 
separate interest of each in all property owned by either 
prior to the time of marriage, with the entirety of the 
community property to the survivor, or survivorship of 
one-half of the ganancial estate, if there be children ; the 
descent to the survivor of one-third of the separate per- 
sonalty of either in fee simple, and one-third of the 



48 BENCH AND BAR OF TEXAS. 

separate realty for life, constitute a system of distribution 
far more provident and equitable than the antiquated 
common-law devices of dower and curtesy. 

The common-law rule of inheritance established in 
Shelly's case never operated upon Texas jurisprudence. 
Every owner of property is considered a purchaser. There 
is no distinction made as to its source; and no person not 
in being at the death of the testator, except children and 
lineal descendants, can partake of the right of inheritance. 
The statute of descent and distributions follows rather the 
precepts of the civil law in determining both the nature of 
devise and the line of descent ; but degrees of consanguinity 
are ascertained and reckoned by tlie rules of the common 
law, and no marriage agreement can change the order of 
descent 

The Spanish law would not permit a testator to dispose 
of more than one-fifth of his property adversely to his heirs 
and lineal descendants or ascendants; and this law, with 
the disposable portion increased to one-f ourth, was of force in 
Texas until the passage of the act of 1856, which abolished 
the doctrine of forced heirship and permitted all persons 
to dispose of their entire property, either by will or 
otherwise, in any manner they might deem proper. 

Neither the civil nor the common law permitted the 
possession of liberty or property exempt from the claims 
of creditors, and it was not until the enlightenment and 
humanity of the present age cried out against its barbarity, 
that imprisoment for debt has been abolished in most, if 
not in all civilized countries. But this emancipation from 
its rigors extended no further. While it could no longer 
gather its victims into debtors' jails and leave them to 
languish and die in loathsome dungeons, it had universal 
power to seize upon the last necessary of life, and reduce 
them to utter destitution and starvation, with a claim upon 
every morsel of subsistence they might acquire. And while 
the cruel practice of this atrocious doctrine shocked the 
humane sensibilities of the philanthropic world, nothing was 
devised to remedy so great an evU. No statesman dared 
to encounter the strensth of a custom which had existed 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 49 

from time immemorial, until the Congress of the Texas 
Republic, springing into life, freed from every shackle of 
false philosophy, enacted a law in 1839, exempting and 
reserving to every citizen or head of a family in the 
Republic, free and independent of the power of any writ 
oi fieri facias^ or other execution, fifty acres of land, or 
one town lot, including his or her homestead, with improve- 
ments to the value of five hundred dollars; household and 
kitchen furniture not exceeding in value two hundred 
dollars; implements of husbandry to the value of fifty 
dollars ; all tools, apparatus, and books, belonging to 
the trade or profession of any citizen ; five milch cows, 
one yoke of work oxen or one horse, twenty hogs, 
and provisions for one year. This generous act shook 
the maxims of antiquity, startled the State govern- 
ments of the American Union, and they hastened 
one by one to follow the benevolent example. It drew 
many a steady yeoman from the States who sought to 
place his wife and little ones under- its protecting segis, 
beyond the reach of ficdvle fortune and overwhelming 
fate. 

This act was the forerunner and foundation of the still 
more bounteous and munificent law organized and embodied 
in the organic system by the Constitution of 1845, which 
increased the homestead exemption to two hundred acres 
of land, or, if a town lot, to two thousand dollars in value, 
made it inalienable by the husband without the wife's 
consent, and incapable of being incumbered by ordinary 
liens. 

The present Constitution, adopted in 1879, increases the 
homestead exemption, if consisting of a town lot, to the 
value of five thousand dollars at the time it was selected as 
a homestead, regardless of subsequent improvements or 
increased value, prohibits the partition of the homestead 
during the life of the survivor, so long as it is maintained 
as such, and so long as the guardian of the minor children 
of the deceased may be permitted to occup}^ it by the court 
having proper jurisdiction. The Constitution of 1879 also 
greatly enlarges the exemptions of the act of 1839 as to 

4. 



50 BENCH AND BAR OF TEXAS. 

personal property ; so that an independent means of sub- 
sistence is secured against accident, improvidence, or mis- 
fortune to every family in the State. 

The land laws of Texas are of a complex and peculiar 
character ; and it would require a volume to trace the vari- 
ous features, changes and multiplied conditions, which have 
characterized title and the manner of acquiring it under the 
sovereignty and power of eminent domain exercised over 
the soil respectively by Spain, Mexico, Coahuila and Texas, 
the Republic, and State. This work can therefore embrace 
only a notice of the chief features and peculiarities of the 
land laws which have existed at difterent times since the 
Texas Revolution, and of the system which now prevails in 
the State. 

At the outbreak of the Revolution all land titles in Texas, 
which were not derived immediately from Spanish or Mex- 
ican grants, emanated from the deeds made by alcaldes and 
land commissioners under domain grants of the State to 
empressarios — persons who had contracted with the gov- 
ernment to import into the country as many as two hundred 
families under the colonization laws of Coahuila and Texas» 
enacted in 1825. These laws were evidently acts of usur- 
pation of a power which belonged alone to the national 
government. For the Mexican government possesses the 
right of eminent domain over the soil in all the States of 
the confederation, and the Mexican States are therefore 
mere creatures of the national government. 

Prior to the acquisition of Louisiana and Florida the 
United States government did not exercise the right of 
eminent domain over any of the States and territories of 
the Union, except those portions which it had acquired by 
cession or purchase for national purposes. The right was 
originally vested in the States which created the Union, and 
they still retain it, except perhaps so much as is neces^^ary 
to effectuate the judgments and execution sales of the Fed- 
era^ courts, tribunals which ought not to exist in the States, 
for the reason that to give effect to their proceedings they 
require virtual participation in a power sacred to the States, 
upon which their sovereignty rests, and which they can not 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 51 

surrender to the Union, nor divide with it in any respect, 
or to any degree, without impairing all their other rights. 

In regard to this power there is a curious decision in the 
case of McMullen v. Hodge, 5 Texas, 74, which declares 
that the power of eminent domain flows from the un- 
trammeled will of the people, expressed in laws of their 
own making. With all due respect the author can not 
withhold his dissent from this definition. If this be true, 
all the teachings of reason and writers are false, and it 
would upset the whole theory of government. There can 
be no sovereignty without this power, and it must exist 
prior to any act of sovereignty. The sale of lands for 
taxes and under execution is an act of the untrammeled 
will of the people expressed in laws of their own making, 
in this country ; but the power of eminent domain must 
pre-exist in order to give effect to both the law and the 
sale. Strip the quality of lord paramount of the soil from 
the Czar of Russia and every jewel in his diadem would 
fall to the ground. It is true that in this country the power 
resides with the people and gives them the right to exercise 
their untrammeled will in laws of their own making; which 
fiows from the power. 

The right of eminent domain being the foundation and 
essence of sovereignty, one of the first acts of the Provis- 
ional Government of Texas was the assertion and exercise 
of this power in the suppression of all operations under 
empressario grants, and in the discontinuance of ail former 
methods of alienating the public lands. The Republic 
acquired the right by revolution, and the pubWc domain of 
Texas was especially reserved to the State in the articles of 
its annexation to the Union. 

Bnt notwithstanding the overthrow of the former system, 
the provisional act provided that all citizens who had be- 
come entitled to lands under the colonization laws of Coa- 
huila and Texas should still receive them, and that all 
persons who might immigrate to Texas and perform the duties 
of citizens during its conflict for constitutional liberty, 
should likewise enjoy the benefits of the colonization laws 
under which they immigrated. These provisions were the 



52 BENCH AND BAR OF TEXAS. 

foundation and beginning of the benign head-rights system 
under which the larger portion of the lands of the State 
have been granted. They were followed by the bounty 
acts of 1835, which gave eight hundred acres of land to 
every soldier in the Texan regular army, six hundred and 
forty acres to every volunteer, and the same to the heirs of 
those who misfht fall in battle or die in the service. 

In order to carry these measures into proper effect, a 
general land office was established in June, 1837, and placed 
under the control of the Secretary of War, who was re- 
quired to give certificates to all persons entitled to lauds 
under the bounty acts, and to record them in his oflSce. 
In December, 1837, this act was extended so as to embrace 
all soldiers who were en2;aged in the battle of San Jacinto 
and the storming of Bexar, to whom company ofiicers were 
required to give the certificates ; and it embraced the heirs 
of all who fell at the butchery of Goliad, the seige of the 
Alamo, and other battles. Another act, passed about the 
same time, increased and graduated the bounties from three 
hundred and twenty to twelve hundred and eighty acres, 
according to time of service, and these lands were made 
inalienable during the life of the donee. These acts of 
bounty and donation confering head-rights for military 
services extended to 1858, and included all soldiers engaged 
in the war for independence. 

These grants, with the head-rio-hts given also to every 
immigrant or head of a family, and to every male over 
eighteen years of age, who was a citizen of the country at 
the time of the Declaration of Independence and remained 
true to the Texan cause, composed a system and policy, 
which were as provident of the increase of population as 
they were benevolent in spirit and operation. 

In consequence of the magnitude of business inaugurated 
by these provisions, an act was passed in 1837 establishing 
a separate land ofiice, and providing for a general land com- 
missioner to preside over the interests of the Republic in 
respect to its public domain. He was to be appointed by 
the President and maintain his office at the seat of govern- 
ment; 3'et it seems that this office was not opened to all 



OEGANIZxVTION OF THE TEXAS STATE GOVERNMENT. 53 

classes of grants until 1844, and its business prior to that 
time was confined chiefly to bounty and donation grants to 
soldiers and head-rights to citizens, who were dutiful dur- 
ing the struggle for independence. The Secretary of War 
continued to issue bounty and donation warrants until the 
close of the Texan war office in 1846, and this branch of 
his business was then assigned to the adjutant-general of 
the State. 

The act of May, 1846, establishing a general land office 
at the seat of government, gave the commissioner power to 
execute and perform all acts and things respecting the 
public lands or the rights of individuals in reference to 
them, and provided him with an ample corps of clerks and 
assistants. This was the beginning of that extensive sys- 
tem, with its perfect and harmonious machinery, Avhich 
now embraces the supervision and entire management of 
the public domain of Texas ; and which, under the present 
efficient commissioner, Maj. W. C. Walsh, casts an eye of 
scrutiny upon every transaction concerning the public lands, 
which it is scarcely possible to evade. 

But to comprehend the necessary steps for obtaining 
patents under this precise and complicated system, and to 
know where to find evidence of ownership requires a 
thorough knowledge of its appurtenances and operations. 
Muniments of title are scattered throughout the entire judi- 
cial system of the state, and to trace an old land title 
through all the variety of grants and modes of conveyance, 
with their various conditions and requirements ; through 
the operation of wills, marriage, forced heirship, limita- 
tions, executions and tax sales; through the obscuring as- 
sociation of conflicting locations, adverse surveys, dupli- 
cate certificates and fraudulent grants, is perhaps the most 
tedious task that a Texas lawyer could be called upon to 
perform. 

Every organized county in the state, which maintains a 
legally qualified surveyor, constitutes a separate land dis- 
trict. The district or county surveyor is required to exam- 
ine the field notes of all surveys made in his district by his 
authority, upon which patents are sought to be obtained, 



54 BENCH AND BAR OF TEXAS. 

and certify to their legality and correctness ; and he is also 
required to keep in his office a map subject to public in- 
spection, on which all the surveys made in his county are 
plainly indicated. He is commanded to transmit every 
three months all sketches and field notes made during that 
time to the commissioner of the general land office, and 
also a full description of all land certificates and warrants 
on file in his office. 

Any person desiring to make an entry or location of land 
must apply in writing to the county surveyor, and file with 
him the evidence of his claim or title to the land Avhich he 
wishes to have surveyed ; also a certificate, if of the first or 
second class, certified by the clerk of the County Court, or 
commissioner of the general land office. The application, 
evidence of title or claim, and the field notes of the survey 
are then transmitted to the general office, where the whole 
matter is subjected to thorough investigation, and if the 
claim is found to be genuine and correct a patent is issued 
to the applicant in the name and under the seal of the State, 
signed by the Governor, countersigned by the commissioner 
and registered in the general land office. 

Every head of a family without a home can obtain a 
homestead donation of one hundred and sixty acres, and 
every young man in the State eighteen years of age can 
have eighty acres, anywhere in the public domain, simply 
upon entry and compliance with the foregoing requirements 
as to survey. But to prevent fraud no patent can be issued 
upon these donation certificates until the expiration of three 
years of continued occupancy by the settler or those who 
claim through him. 

A provision no less benign is that which gives the right 
of pre-emption. Every person in the State, who is eighteen 
years of age, has the privilege over all others to purchase 
and pre-empt within one year, at one dollar per acre, in- 
cluding the improvements, one hundred and sixty acres of 
the public land, upon which he may have entered and set- 
tled in good faith, provided that he makes application for a 
survey and certificate of the right at the time of occu- 
pancy. 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 55 

These benevolent laws have established thousands of Texan 
familes in a condition of happiness, prosperity and use- 
fulness. There is no excuse for healthy indigence. The State 
stands with the outstreched arms of welcome and benevo- 
lence. With one hand she beckons the entei-prising and 
industrious, and with the other she points every person to a 
home who enters her borders. 

But amid this benign effulgence of Texas jurisprudence 
its liberal and comprehensive educational system presents, 
if possible, a superior glow. No Stat«, no country, ever 
made such ample and durable provision for general public 
education as that which graces the statutes of the State of 
Texas, and only a matter of time can intervene before her 
higher institutions of learning will take their stand among 
the best endowed and most efficient in America. 

The Texas Kepublic, b}"^ an act in 1839, set apart fifty 
leagues of land for two universities, and three leagues in 
every county for the purpose of establishing in each a 
primary school or academy, and this was increased by the 
act of 1840 to four leagues, appropiated in each county to 
school purposes. These were protected from settlement 
by the act of 1856, which precluded settlers upon the school 
lands from the benefits of the statute of limitations. The 
constitution of 1845 required one-tenth of the annual rev- 
enues of the State to be set aside for educational purposes, 
and the act of 1854 appropriated to this fund two millions 
of United States five per cent bonds, which was to be a 
special school fund with the interest accruing to school pur- 
poses. The act of 1858 established the University of Texas 
and appropriated one hundred thousand dollars of United 
States bonds for its maintenance, in addition to the fifty 
leagues set apart for university purposes by the Republic, 
and to this was added one-tenth of all the lands which had 
been reserved and set apart for the encouragement of the 
construction of railroads. 

A large portion of these funds and the proceeds of the 
sales of the school lands were used in appropriations for 
frontier defences during the civil war, and together with 
those loaned to the railroads, which were permitted to re- 



56 BENCH AND BAR OF TEXAS. 

place them with treasury notes and coupons of the Confed- 
erate States, were entirely lost to the school system. 

The Constitution of 1866 created a perpetual school fund 
consisting of all former dedications and appropriations 
made for that purpose and an alter^iate section of all lands 
granted to railroads, with an incomprehensible provision 
that if any portion of the public domain should at any time 
be sold to the United States, one half of the proceeds 
should accrue to the public schools. It also provided for 
the levy of a special school tax and forbade the loan of the 
school funds, and restricted their investment to United 
States bonds, or the bonds of the State of Texas and to 
such bonds as the State might indorse. 

But it was left for the present Constitution of Texas, 
adopted in 1875, to crown with benevolence all known laws 
and legislation providing for the education of the young in 
any State or country. In addition to former appropriations, 
one-half of the public domain of the State, and all sums 
arising from the sale of any portion of it, constitute a 
perpetual school fund; and a portion of the public revenue, 
not to exceed one-fourth, also a capitation tax of one dollar 
on every male citizen between the ages of twenty-one and 
sixty years, are annually set apart for the benefit of the 
public free schools. These funds are placed beyond the 
power of any other appropriation whatever. This Consti- 
tution provides for the establishment of a " University of 
Texas," which shall include an agricultural and mechanical 
department. In addition to former grants it sets apart one 
million acres of the public lands for the benefit of the 
university, and requires the Legislature to provide for and 
maintain an institution of the first class. The Governor, 
Controller of Public Accounts and the Secretary of State 
are constituted a board of public education, and are required 
to make a proper distribution of the school funds among 
the counties. Separate schools are provided for the two 
races, and no school with a mixed attendance of the white 
race and negroes or their descendants to the third grener- 
ation can participate in the benefits of the public school 
fund. 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 57 

The amended Constitution of 1883 went yet further in 
making appropriations to the school system, and gave it 
one-fourth of the revenue derived from the State occupation 
taxes, and added to this the levy of an annual ad valorem 
State tax of such an amount, not to exceed twenty cents on 
every one hundred dollars, valuation, as, with the available 
school fund arising from all other sources, will be sufficient 
to maintain the public free schools for a period of not less 
than six months in each year. The Legislature was author- 
ized to form school districts within all or any of the 
counties of the State, and authorize an additional ad valorem 
tax to be levied and collected in these districts for the 
further maintenance of the public schools in each system; 
provided that two-thirds of the qualified voters in each 
district shall vote such tax, which is not to exceed twenty 
cents per annum on every one hundred dollars, in valuation 
of the property subject to taxation in the district. But this 
limitation of the tax does not apply to cities and towns 
constituting separate school districts. 

The Legislature by an act of January, 1884, provided 
for the election of a State superintendent of public instruc- 
tion, to be chosen at each general election of State and 
county officers, who shall also be ex-officio secretary of the 
state board of education. He is charged with the admin- 
istration of the school law, and w^ith a general superinteud- 
ency of all matters relating to the public schools of the 
State. He is required to make an annual apportionment 
of the available school funds among the counties, and to 
the cities and towns which constitute separate school organ- 
izations, according to the scholastic population of each. 
The county judges have, under the direction of the State 
superintendent, the immediate supervision of all matters 
pertaining to public education in their 'respective coun- 
ties. 

This system, with its vast and perpetual endowment and 
comprehensive organization, affords a basis of a universal 
popular education, around which cluster the brightest hope.-> 
and prospects of the State. As the benign donation, pre- 
emption and exemption laws preclude all excuse for indi- 



58 BENCH AND BAR OF TEXAS. 

geuce, so the liberal school system removes all reasonable 
grounds in which ignorance and illiteracy can take root. 

The act required the Governor to appoint a superintend- 
ent immediately ; and the cultured young gentleman who 
was assigned to that duty, and who has since been elected 
by the people, has a ^rand and noble task before him, 
which his energy and efficiency will doubtless accomplish in 
a development of the public school system into a practical 
benevolence, philanthropy and public good, which will be 
his greatest personal credit, and the highest honor of his 
State. 

The criminal laws of Texas are of a purely statutory 
character. They are embodied in a penal code prepared 
by two able lawyers — John W. Harris and James Willie — 
in pursuance of an act of the Legislature passed on the 11th 
of February, 18.')4. This code became the law of the State 
in February, 1857. Its design was declared to be the defi- 
nition in plain and unmistakable language of every offense 
against the laws of the State, and to assign to each its 
proper punishment ; so that the penal law of the State 
might be complete within itself and have no dependence 
upon any laws, written or unwritten, of any foreign system ; 
and it was declared that no person should be punished for 
any offense which was not expressly defined and the penalty 
affixed by the statute laws of the State. The common law, 
however, is retained as a rule of construction when not in 
conflict with any statutory provision. The code and every 
law enacted upon the subject of crime is to be construed 
according to the plain import of the language in which it is 
written without regard to technical distinctions or any 
difference of construction between penal laws and those 
upon other subjects. No person can be convicted of an 
offense who is under nine years of age, nor who is under 
thirteen unless sufficient discretion be proven. No person 
can be punished with death who has not attained the age of 
seventeen years, nor can a married woman who commits an 
offense by the command or persuasion of her husband; but 
she may be imprisoned for life. The common-law rules of 
evidence are observed in respect to the proof of insanity in 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 59 

the trial of all offenses in which that plea is made. All 
persons who act together in the commission of crime are 
deemed principals, and all persons present at the commis- 
sion of an offense who advise, encourage, or aofree to its 
perpetration are likewise held to be guilty of the act. 

Neither the husband nor wife of an offender can be an 
accessory, nor his brothers and sisters, nor his domestic 
servants, nor his relations by consanguinity or affinity in 
either line. These, when accomplices, bearing authorita- 
tive relations to the principal, receive, the highest pen- 
alty affixed to the offenses, and there may be accomplices 
in all offenses except in manslaughter and negligent homi- 
cide. 

The punishments which may be inflicted under the code 
are death, imprisonment in the penitentiary for life or a 
term of years, or in the county jail; forfeiture of civil or 
political rights, and pecuniary fines. There are but three 
offenses which can incur the penalty of death — these are 
treason, murder and rape. Those for which the punish- 
ment may be imprisonment in the penitentiary are murder 
in the second degree, arson, robbery, burglar}^ rape, theft, 
forgery, and conspiracy to commit either of these crimes ; 
misprision of treason, manslaughter, assault with intent to 
commit a felony, maiming or disfiguring the person of 
another, kidnaping and abduction, abortion, seduction, 
administering poisonous and injurious potions, dueling, 
willful burning, malicious misdiief , misapplication of public 
money, dealing in fraudulent land certificates, bribery, 
perjury, counterfeiting, permitting escapes by officers; 
giving false land certificates, authentication or entr}' by an 
officer, false swearing and subornation, conversion of money, 
script or other evidences of debt by officers, the rescue of 
convicted felons, bigamy, miscegenation, incest, sodomy, 
giving false certificates by public weighers, illegal marking 
and branding, altering or defacing marks and brands, em- 
bezzlement, swindling, and fraudulent disposition of mort- 
gaged property.^ 

Offenses which may incur imprisonment in the county 
jail are: aggravated assault and battery, negligent homi- 



60 BENCH AND BAK OF TEXAS. 

cide, disturbing public worship, offenses affecting suffrage, 
failure of duty on the part of officers, barratry, malicious 
prosecution, false personification, riots, rescue of prisoners 
convicted of misdemeanors, preventing labor, desecration 
of graves, using false weights and measures, false impris- 
onment, libelling, slandering, false accusations and threats 
of prosecution, spreading infectious diseases, threats to 
take life, sending threatening letters, and petty thefts. 

Those which may receive only a pecuniary punishment 
are : illegal contracts affecting the State, extortion in the 
collection of taxes or other public money, dealing in public 
lands by officers, drunkenness in office or in public places, 
bribing the officers of elections, offenses committed by 
them, disturbing public worship, violating the Sunday 
laws, extortion b}'- officers, official peculation, failure of offi- 
cial duty, barratry, compounding crime, malicious prose- 
cution, false personification, unlawful assemblies, riots, 
disturbing residence, affrays and breaches of the peace, 
unlawfully carrying arms, adultery and fornication, keep- 
ino- disorderly houses, indecent publications and exposure 
of the person, desecration of graves, illegal disinterment, 
illegal banking, conducting a lottery or raffle, gaming, bet- 
ting at elections, unlawfully selling intoxicating liquors, 
vagrancy, illegal pawn-brokerage and violation of the insur- 
ance laws, carrying on offensive trades and nuisances, 
pollution and obstruction of water-courses, selling un- 
wholesome food, drink or naedicine, unlawful practice of 
medicine, violating quarantine laws, obstructing roads, 
streets, bridges and navigable streams, refusal to serve and 
failure of duty as overseer of public roads and irrigation, 
keeping a ferry without license, injuring public grounds 
and buildings, trapping and netting out of season, using 
false weights and measures, simple assault or battery, false 
imprisonment, kidnaping and abduction, attempt to pro- 
duce abortion, negligent homicide, hbelling, slandering, 
false accusations and threats of prosecution, willful burn- 
ino;, malicious mischief, spreading infectious diseases, 
destroying timber, selling stock without a list of the brands 
or bill of sale, butchering animals without brand, failing to 



ORGANIZATION OF THE TEXAS STATE GOVERNMENT. 61 

make report of animals slaughtered for market, selling 
stock by auctioneers without written statement as to their 
acquisition, unlawfully using or disposing of estrays, the 
giving of fraudulent certificates by public inspectors, threats 
to take life, sending threatening letters, and petty theft. 

All offenders suffer double penalty upon a second con- 
viction, and may receive quadruple punishment upon a 
third and subsequent conviction; and when an offense of 
which a person is convicted is continuous in its nature, 
judgment is also rendered for its suppression. All convic- 
tions of felony work a forfeiture of political rights. 

The act of 1879, declaring the penal code to comprise 
the entire criminal jurisprudence of the State, also adopted 
a code of criminal procedure, embracing its entire criminal 
judicature. The object of this code, as declared, was to 
render the rules for the prevention and punishment of 
offenses intelligible to the officers of the law, and to all 
persons whose rights might be affected by them ; to prevent 
the commission of crime, and all hope of escaping its penal 
consequences ; to insure a fair and speedy trial, and the 
production of all important evidence, and to provide for 
certain execution of sentence where the law is declared. It 
is also provided that if any necessity should arise for a rule 
of procedure not contained in this code, the rules of the 
common law shall be applied and govern. This code de- 
fines the general duties of olScers charged with the enforce- 
ment of the criminal laws, fixes the criminal jurisdiction of 
the several courts, lavs down rules and proceedings for the 
prevention and suppression of offenses, and in regard to the 
writ of habeas corpus. It provides the time and place for 
the commencement of criminal actions, with the incidents 
of arrest, commitment, bail, and search-warrants ; presents 
rules for the organization of grand juries, and defines their 
duties ; describes the nature and requirements of indict- 
ments and informations, and of all proceedings preliminary 
to trial. It provides ample and elaborate rules in regard to 
trial and its incidents, also in respect to proceedings after 
verdict, and all miscellaneous proceedings connected with 
criminal trials. 



62 BENCH AND BAR OF TEXAS. 

This general view of Texas jurisprudence reaches the 
limits of the scope of this work, and the following chap- 
ters will be devoted to biographies of the eminent judges 
and lawyers whose professional careers have made im- 
portant impression upon the jurisprudence of the State ; 
and with these will be interwoven such details and promi- 
nent features as will promote an exposition of the pecu- 
liarities of Texas jurisprudence and preserve the memory 
of the professional eminence which it has produced. 



CHAPTER Y. 



THE BENCH OF THE REPUBLIC AND STATE — EMINENT JUDGES, DECEASED — 
JAMES T. COLLINGSWOKTH — THOMAS J. RUSK — JOHN HEMPHILL — AN- 
DERSON HUTCHINSON — R. E. B. BAYLOR — RICHARD MORRIS — WM. B. 
OCHILTREE — ABNER S. LIPSCOMB — R. T. WHEELER — GEORGE F. MOORE 
— A. J. HAMILTON — LEMUEL D. EVANS — PETER W. GRAY — M. H. BON- 
NER— S. P. DONLEY — THOMAS H. DUVAL — AMOS K. MORRILL — M. D. 
ECTOR — 0. M. WINKLER — BENJAMIN 0. FRANKLIN — RICHARDSON A. 
SCURRY — WILLIAM S. TODD. 

Of all the varied characters of men there is no one whose 
traits are wrought to a higher standard of excellence, and 
whose composition is more devoid of the petty weaknesses 
as well as the grosser foibles of mankind, than that of a 
truly learned, just and upright judge. His functions are 
among the most sacred and elevated that pertain to the 
affairs of humanity, and he feels the weight of that respon- 
sibility which incurs from a higher seat the same judgment 
which he has meted to others. 

His mind is at once the sun and moon of the law. It 
sheds its beams upon its obscure features, illumines without 
lenifying its stern aspect, and in turn reflects its light upon 
the face of society, penetrates the dark confines of human 
depravity, and presents a beacon for the guidance of recti- 
tude. 

His heart is a tablet upon which are inscribed in mingled 
characters the rigid outlines of justice, the stern mandates 
of a jealous rule, and the smiling pictures of benevolence 
and philanthropy. He knows no passion but his devotion 
to duty; he cherishes no motive but the attainment of jus- 
tice ; he fears no displeasure but the reprimand of con- 
science, and seeks no applause but the benediction of right. 

His conscience vibrates at the tenderest touch of doubt, 
and uttere its strains of hallowed dictation at the sliffhtest 
appeal of virtue. His judgment stays to catch the notes 

(63) 



64 BENCH AND BAR OF TEXAS. 

of its approbation, and his actions leap forth at its bidding. 
It is there alone that he seeks for justification and reward, 
and there finds himself the sanctified recipient of the bless- 
ing vouchsafed to the faithful servant. He holds to the 
sentiment of Persius, ^^ Nee tequassiveris extra ^'' and which 
Dryden has happily translated ; — 

•' The conscience is the test of every mind; 
Seek not thyself, without thyself, to And." 

This precept forced itself as a necessity upon the con- 
duct of the early judges of the Texas courts. Without 
applicable precedent, or the controlling maxims of any fixed 
system, they were guided by reason, by analogy, and, 
above all, by* their own conscientious views of right and 
wrong. That these were sometimes speculative and often 
conflicting, was but the natural effect of the different 
shapes and colors in which things present themselves to the 
varied mental visions of mankind. Their reasoning was 
not to fit circumstances to law, but to adjust the law to the 
facts, and conscience was the plumb-line of the measure- 
ment. 

On thie erection of Texas into a separate superior judicial 
district in 1834, by the Congress of Coahuila and Texas, 
Thomas Chambers was appointed superior judge, and was 
the incumbent of that office when the provisional system of 
the Consultation intervened in 1835. The first chief justice 
of the Republic was James T. CoUinsworth, a lawyer of 
ability, who had been United States district attorney in 
Tennessee. He committed suicide by leaping from the 
deck of a vessel in Galveston bay before he had held any 
regular tei-m of the Supreme Court, and was succeeded by 
the subject of the following sketch. 



THOMAS J. RUSK. 65 



THOMAS J. RUSK. 



Thomas Jefferson Rusk, a Texan general, jurist and 
8tatesm>an, was born in Pendleton district, South Carolina, 
on the 5th of December, 1803. His father ^vks a native of 
Ireland, and pursued the occupation of a stane mason. 
Being honest and industrious, he secured a residence upon 
land belonging to John C. Calhoun ; and here, under the 
inspiring influence of the great Southerner, the subject of 
this sketch received his first ambitious impressions, and 
became imbued with that love of freedom and broad view 
of human rights and human destiny which grew and devel- 
oped into qualities that made him one of the heroes af a 
young nation struggling for constitutional liberty. Mr. 
Calhoun discovered the budding capacity and glowing 
ambition of his young tenant, and procured him a situation 
in the office of the district clerk, where he earned a living 
and at the same time prepared himself for the bar. On 
obtaining license to practice law, he removed to Clarksville, 
Georgia, and soon obtained prominence in his profession. 
But here, in the midst of the gold region of that State, his 
ardent nature and enterprising spirit caused him to be 
drawn into the tide of speculation, which at that time rolled 
its sparkling bubbles over that portion of Georgia, alluring 
men of all professions into its seductive but often ruinous 
vortex. Mr. Rusk invested his means in the stock of a 
company of land and mine speculators, the managers of 
which embezzled the corporation funds in 1835, and fled to 
Texas. He pursued Ihem, and on arriving at Nacogdoches, 
was so well pleased with the appearance of the country 
that he determined to make that place his future home. 
But the turbulent times immediately preceding the Texas 
Revolution produced events that stirred the fires of 
5 



66 BENCH AXD BAR OF TEXAS. 

patriotism which had been kindled in the bosom of his 
youth, and at the head of a body of Texans whom his 
enthusiasm had aroused, he hastened to check and avenge 
the massacre of Americans by Mexicans in the country 
between the Brazos and the Rio Grande. From this time 
he devoted himself entirely to the achievement of Texan 
independence. He was a colonel in the siege of San 
Antonio, and a member of the convention which declared 
the independence of the Texan Republic. In the organi- 
zation of the new government he was appointed secretary 
of war, and established his office at the headquarters of the 
Texan army ; and while it was retreating eastward after 
the fall of the Alamo and the defeat of Col. Fannin, he 
ordered the countermarch which culminated in the battle of 
San Jacinto. When Gen. Houston was wounded in the 
beginning of that action, Col. Rusk assumed command, 
and led the charge which put the enemy to route. The 
wound of Gen. Houston having disabled him from active 
service, Col. Rusk was made a brigadier-general, and placed 
in command of the Texan army. His conduct throughout 
the struggle was characterized by the utmost vigor and 
courage. He was prompt to move in whatever direction 
the army was needed, and was always ready for battle. 

After the retreat of the Mexicans he proceeded to Goliad, 
the scene of Fannin's defeat, and caused the mutilated and 
seared remains of the Texans, which were scattered over 
the field, to be gathered up, and when they were brought 
together for burial he delivered over them an oration, 
which, in eloquence and pathos was unsurpassed by that of 
Pericles over those who fell in the Samian war, in which he 
endeavored to impress the devoted patriotism of the dead 
as an example of glory upon the living. It is said that 
many a rough and hardy soldier, whose eyes had never 
since childhood been wet with the waters of sorrow or 
sympathy shed copious tears that day over the half con- 
sumed bones of his comrades, which, after the funeral 
oration of the General, were deposited with the honors of 
war in one common sepulchre. 

In the fall of 1836, Gen. Rusk was appointed to a seat 



THOMAS J. KUSK. 67 

in the Cabinet of President Houston, but soon resigned in 
consequence of the condition of his private affairs, which 
at that time claimed his whole attention. In 1837 he was 
elected from Nacoo-doches to a seat in the second Congress 
of the Republic, and during the ensuing year was engaged 
in the war with the Cherokees, Caddoes and other tribes of 
Indians which had been incited by the Mexicans to acts of 
rapine and atrocity in Northern and Eastern Texas. In 
February, 1839, he was elected by Congress to the office 
of Chief Justice of the Republic, which he occupied one 
year, and resigned in order to again return to the super- 
vision of his domestic affairs. His decisions, only five in 
number, are reported in Dallam's Digest. 

It can not be said of Judge Rusk that he was a learned 
judge or a profound lawyer. Flung in the prime of life 
into the van of a revolution which quickened and engaged 
every energy of his nature his lucuhrationes annorum viginti 
were divided between the forum, the field and the halls of 
legislation, in which the new government was putting on 
the panoply of an independent nation. But his knowledge 
of law was equal to the circumstances which surrounded 
him. If his opinions are apparently arbitrary and senten- 
tious in their brevity, it must be borne in mind that it 
would have been absurd to quote precedents and authorities 
from systems of law which had not been adopted by the 
republic, and it would likewise have been folly to attempt 
to explain the various impressions which the multiplied 
detailsof circumstance made upon his mind in the formation 
of opinion, if indeed it were possible for any one to present 
at all times an intelligent analysis of the mental process 
which leads to conviction. 

On retiring from the bench Judge Rusk resumed his 
practice, and took his place at the head of the bar of the 
Republic; but while he was a lawyer of sound judgment, 
of a clear perception of right and wrong, and of a deep 
sense of justice, his abilities as a statesman and as a leader 
of men were pre-eminent, and in 1843 he was again called 
to public service, and was appointed brigadier-general of 
militia, an office which conferred upon him almost unlimited 



68 BENCH AND BAR OF TEXAS. 

power in the Republic. He held this position one year, 
and then devoted his energies to the annexation of Texas 
to the American Union, of which he was one of the first 
and most zealous advocates. He was elected a member 
of the Convention of 1845, which framed the Constitution 
of the State, and was unanimously chosen president of that 
body. The first Legislature of the State elected him in 
March, 1846, to the Senate of the United States, in which 
he continued to serve his country with unswerving fidelity 
and pre-eminent ability to the time of his death. He held 
a proud and influential position in the Senate, and was for 
several terms at the head of the Committee on Postal 
Affairs. It is said that the President offered him the 
position of Postmaster-General and he declined it. During 
the session of 1855 he was president j97'o tern of the Senate, 
and discharged the duties of the chair with a dignity, im- 
partiality and ability which gained for him the most 
enviable parliamentary laurels, and deepened the respect 
in which he was held by the members of that august 
assembly. He was one of the most popular members of 
the Senate. He was trusted, honored and beloved b}'^ all 
parties ; and while he rarely delivered a set speech, his 
quiet and unobtrusive manners and unwearying watchful- 
uess of the interests of his constituents availed them more 
than all the powers of oratory could have achieved. 

Judge Rusk was exceedingly social and domestic in his 
habits, and it was, perhaps, this fondness for the retirement 
of home life which caused him so often to resign or decline 
the offices of honor and trust which were offered him or 
conferred upon him. He was warm in his friendship, and 
devoted and constant in his attachments, while his patriot- 
ism was the ruling passion of his life. But the loss of his 
wife, whom he married in Georgia, and who had shared 
with him all the vicissitudes of his career, induced a fatal 
despondency which, aided, perhaps, by other causes, drove 
him to the desperation of suicide, and he died by his own 
hands, in the City of Washington, in 1857. 



JOHN HEMPHILL. 69 



JOHN Hemphill. 



The professional minds of judges and lawyers may be 
divided into two separate and distinct classes, which may 
be aptly designated, respectively, the perceptive and the 
memorative. To one class belong those whose legal knowl- 
edge and perception depend upon memory, and are subser- 
vient to a vague medley of general precedents and author- 
ities which must be invoked on all occasions when it 
becomes necessary to grapple with great and important 
questions. To this class usually belong those whose powers 
of perception have never been whetted by close and con- 
tinued application, and always those who are deficient in 
t^e organs of analysis and abstraction. 

The other class comprises those who depend chiefly upon 
their own conscious resources, who combine and embody the 
principles of law with their own perceptions, and mingle 
them with the elements of their own judgment. Like 
Lord Thurlow, they care not so much " how a case was de- 
cided, as why it was so decided." With the firstclassbath 
judgment and discernment are habitual plagiarisms, while 
with the other, these are the emanation of their own minds, 
and they speak as authorities themselves. The decisions of 
Chief Justice Marshall required no authorities to support 
them; and these judicial qualities eminently fitted the sub- 
ject of this sketch for the development of a new system of 
laws amid circumstances which precluded access to the 
trodden fields of precedent. His long career upon the 
bench is characterized by an untiring and successful eftoi t 
to harmonize the excerpted elements of Texas jurisprudencr 
and endow it with an efiiciency that could traverse the 
scope of justice. 

Chief Justice John Hemphill was a native of South 



70 BENCH AND BAR OF TEXAS. 

Carolina, and was a descendent of one of the early settlers 
of that State. He was educated at Jefferson College, in 
Pennsylvania, from which he graduated in 182G, and im- 
mediately began the study of law. He immigrated to 
Texas at an early period of its history, and was one of the 
district judges of the Republic. He was an astute and 
erudite lawyer, and had attained to such eminence in his 
profession that upon the resignation of Judge Rusk, in 
1840, he was appointed Chief Justice of the Texas Repub- 
lic, but resigned in 1842 and accepted the position of 
adjutant-general, and accompanied Gen. Somerville in the 
unfortunate Mier expedition to capture reprisals for Texans 
held as prisoners in Mexico. He was a zealous advocate of 
the union of Texas with the American States, and was a 
prominent member of the convention of 1845, which adopted 
the ordinance of annexation, and of the convention 
that formed the State Constitution. In 1846 he was ap- 
pointed chief justice of the State and held that position 
until 1858, when he was elected to a seat in the United 
States Senate. 

Judge Hemphill was one whom nature seems to have 
especially designed to be an arbiter of the affairs of men. 
He possessed great candor, and a stern and unbending in- 
tegrity. An acute and penetrating discernment, a nice 
discrimination, a clear perception and a sound judgment 
were predominating faculties of his mind ; and the pursuit 
and attainment of justice afforded him the highest gratifi- 
cation. He never tired in the evolution of legal principles, 
and never failed to establish an equitable adjustment of the 
most complicated circumstances. It was said of Lord 
Hardwicke that he had an intuitive perception of the law, 
and Judge Hemphill possessed this rare gift to an eminent 
degree. His decisions, which extend through twenty-one 
volumes of the Texas Reports, are models of legal elucida- 
tion, and always set forth in a clear and unmistakable 
light the relations and rights of the parties. His powers of 
analysis and amplification were peculiarly adapted to the 
elimination and development of the varied issues of law, 
equity and fact, often presented by the pleadings under the 



JOHN HEMPHILL. 71 

system which obtain^i in the Texas courts. His conclusions 
are never arbitrary or sententious ; but are combinations of 
pure and established elements, wrought together by the 
gavel of justice, and deduced along clear and logical paths, 
illuminated by the light of reason and sound judgment. 
He was fond of the refined and beautiful in literature, and 
his decisions often glow with a literary polish and elegance 
rarely found in the dry and hackneyed field of legal diction. 

During his long career upon the Supreme bench. Judge 
Hemphill established many eminent precedents, and settled 
many questions which had been held in conflict in the older 
States. He was one of the most learned civilians of his 
time, and one of his greatest judicial achievements was his _i — 
success in harmonizing the common and civil-law elements 
of Texas jurisprudence. He made many novel applications 
of principles of each system to render them conformable to 
our polity and suitable to our condition and the state of our 
society. But he had a strong partiality for the civil law, 
and during the debates in the convention of 1845, upon a 
clause of the Constitution allowing trial by jury in all cases, 
either in law or equity, he said : — 

"I can not say that I am very much in favor of either 
chancery or the common-law system. I should much have 
preferred the civil law to have continued in force for years 
to come. But inasmuch as the chancery system, together 
with the common law, has been saddled upon us, the ques- 
tion is now, whether we shall keep up the chancery system 
or blend them together. If we intend to keep it up as it is 
known in the courts of England, the United States, and 
many of the States, and in the United States courts that 
will be established here, we should oppose this innovation ; 
for I do not know any alteration which could be a greater 
innovation than to subject all chancery cases to a trial by 
jury." 

He was never married ; yet he possessed none of the pe- 
culiarities usuall}^ belonging to those who grow old in celi- 
bacy. He was a champion of the widow and the orphan, 
a staunch advocate and protector of the legal rights of mar- 
ried women, and invariably gave to the laws regarding them 



72 BENCH AND BAR OF TEXAS. 

a liberal construction. He has been styled in one of the 
decisions of an eminent judge the great champion of the 
homestead rights in Texas, and his decisions in regard to 
exemption, community interests and marital rights embel- 
lish and eminently characterize the jurisprudence of the 
State. He thoroughly understood the source and nature of 
Texas law. His opinions have rarely been disturbed by his 
successors, and they will always be quoted as high au- 
thority. 

Judge Hemphill was a profound student, a thorough law- 
yer, a good man, and devoted to his judicial duties. His 
habits were seclusive, and his reserved manners sometimes 
gave him the aspect of sternness. Yet he possessed a gen- 
erous nature, and his heart was aglow with tender sympa- 
thies and noble impulses. But while the beneficence of 
these qualities were often experienced by his friends, so 
eminent was his judicial character that it may be said of 
him, as Mr. Erskine once said of Lord Mansfield, that he 
was " that great and venerable magistrate who is remem- 
bered only with the impression of the awful form and figure 
of justice." 

Judge Hemphill was . thoroughly Southern in his senti- 
ments, and his career in the United States Senate was 
characterized by a vigorous advocacy of the principles 
which swayed the minds of the Southern people. His en- 
trance into the Senate was to step upon a plain from 
which he could observe the gathering clouds which in less 
than two years were to lower in the national horizon. 
He was not an orator, but his speeches abound with 
sound logic, and always present a stern array of facts in 
pure, terse and incisive language. His speech on the right 
of a State to withdraw from the Union, delivered in the 
Senate in January, 1861', is a superb exhibition of these 
qualities. In this speech he showed that Texas, having 
been an independent Republic, which had taken its stand 
among the nations, at the time of its annexation, would, in 
withdrawing from the Union, only resume the sovereignty 
and independence which she had laid aside when she en- 
tered it. He scouted the charges of ingratitude made at 



JOHN HEMPHILL. 73 

that time upon Texas in view of her threatened secession, 
and showed that the State was in no way responsible for the 
Mexican war, and that it was not waged by the United 
States even for the benefit of Texas. 

When his State seceded. Judge Hemphill retired from 
the United States Senate, and was sent as a delegate to the 
convention at Montgomery. He was subsequently elected 
to a seat in the Confederate Congress, and died in Richmond 
in 1862. His remains were brought to Austin and interred 
in the State cemetery, where they repose by the side of 
some of the associates of his long Judicial career, while his 
name is inscribed in letters of indelibility upon the juris- 
prudence of Texas, where it will receive the tribute of ven- 
eration as long as the voice of justice shall be heard in the 
land. 



74 BENCH AND BAR OF TEXAS. 



ANDERSON Hutchinson. 



Anderson Hutchinson was a native of Greenbrier County, 
Virginia, and received a common-school education, most of 
which he acquired at intervals while assisting his father in 
his office, which was that of clerk of the county court. 
Here he also acquired some practical knowledge of legal 
forms and processes, which was, no doubt, the foundation 
of those habits of accuracy and that expertness in the 
preparation of legal documents which characterized his 
practice and gained him success. 

On reaching the age of manhood Mr. Hutchinson emi- 
grated to Knoxville, Tennessee, where he was admitted to 
the bar, and soon acquired considerable reputation. This 
he achieved by means of perseverance and a vigorous devo- 
tion to his profession, as well as by the native faculties of 
his mind, which the very touch of learning kindled into a 
flame of genius. After practicing some years at Knoxville 
he removed to Huntsville, Alabama, and there encountered, 
with increasing reputation, the eminent lawyers of that 
noted bar. He then removed to Mississippi, and estab- 
lished his residence in the town of Raymond, in Hinds 
County, about the year 1835. 

In 1840 he published, in conjunction with Volney ^. 
Howard, a digest of the laws of Mississippi, for which the 
Legislature allowed him $12,000, purchasing fifteen hun- 
dred copies, and in 1848 he published his Mississippi Code. 
This is undoubtedly a work of great merit, and required an 
incalculable amount of labor as well as great ability in its 
preparation. It is not a digest, nor revision, nor a com- 
pilation of the statutes at large, but an analytical com- 
pendium, excluding all enactments not in force except 
those which are necessary to explain some right originating 
from them, or requisite for affording an insight into existing 
statutes. 



ANDERSON HUTCHINSON. 75 

The plan of this work conforms to the admirable anal^'sis 
of Bhickstone's Commentaries, and in its arrangement pre- 
sents a striking novelty as well as an exhibition of marked 
ofenius. It gave entire satisfaction, and the Legislature 
ordered two thousand copies, to be distributed among the 
officers of the State. 

In the spring of 1841 he removed to Texas, and was soon 
afterwards appointed one of the district judges, who, when 
sitting in banc, composed the Supreme Court of the Ee- 
public. In this capacity he acquired an exalted reputation 
as an able lawyer and a man of integrity. He had been 
but a short time upon the Texas bench when, while sitting 
on the trial of an important case in San Antonio, he was 
captured by a sudden advance of the Mexicans under Gen- 
eral Woll. After a gallant defense by the citizens, in w^hich 
he actively participated, the advance guard of the Mexican 
invading army broke into the town, captured the court- 
house and carried away the judges and other officers of the 
court, as prisoners, to the castle of Perote. Here he was 
closely confined and subjected to great hardships ; but, 
through the influence of the celebrated Waddy Thompson, 
at that time the American Minister at the City of Mexico, he 
was released in 1843, and, returning to Mississippi, renewed 
his practice in co-partnership with Henry S. Foote. 

As a lawyer, Judge Hutchinson owed his success and 
celebrity more perhaps to an accurate and laborious prep- 
aration of his cases than to any pre-eminent feature of 
ability. He was deeply read in the law, and by application 
and indefatigable industry availed himself fully of his ex- 
tensive knowledge and resources. The accuracy of his 
pleadings, his uniform urbanity and simplicity of manners, 
his fidelity to his clients, and the force of character which 
he brought to bear upon a cause, all contributed to his 
great popularity and success. He possessed an extraor- 
dinary degree of promptness, decision and energy, which, 
with a sincere kindness of heart and love of justice, enlisted 
for him a confidence which no power could shake ; and he 
made a lasting impression upon the jurisprudence of both 
Mississippi and Texas. He died in the year 1853. 



76 BENCH AND BAR OF TEXAS. 



R. E. B. Baylor. 



This pious man and upright judge was born in the State 
of Kentucky during the year 1793; but in early life 
removed to Alabama, studied law, and was admitted to the 
bar of that State. He also became an active politician, and 
represented his district in the United States Congress. In 
1839 he emigrated to Texas and settled in Fayette County, 
where he practiced his profession, and, being also a minister 
of the gospel, pursued at the same time, the duties of his 
clergical functions. He was soon afterward appointed 
district judge, and was one of the judges of the Supreme 
Court of the Eepublic from 1841 to the annexation of 
Texas to the Union. He was re-appointed to the bench of 
the State, and held the oJffice of district judge until the 
feebleness of old age compelled him to retire from the 
active duties of prof essional life. 

He was a member of the Convention of 1845, which 
framed the first Constitution of the State, and acted a 
prominent part in that distinguished assembly. Though a 
Baptist clergyman, he favored the adoption of the provision 
of the Constitution excluding ministers of the gospel from 
civil office, and " dedicating them to God and the care of 
souls," and upon a motion being made and supported by 
Mr. Henderson and others, to strike out the excluding clause, 
he said: " I think the clause a wholesome and wise one. I 
do not think that any office coming directly from the people 
ought ever to be filled by the clergy of any denomination. 
I would as soon see a woman mingling with the populace 
at large, mounting the rostrum and making stump speeches, 
as it is generally called, as to see a clergyman engaged in 
business of this kind. Sir, the good and pious do not wish 
this thing; none but the ambitious desire it, and they. 



K. E. B. BAYLOR. 77 

before all others, ought to be excluded. There are sectarian 
jealousies and heartburnings enough among; the various 
religious denominations of every country ; and by opening 
this new field to human ambition, you will only make the 
breach between the different sects of Christians wider than 
it is now. I think, therefore, that the section ought to be 
retained. A great deal might be said upon the suV)ject. It 
seems to me, further, that it is calculated to keep clear and 
well defined the distinction between Church and State, so 
essentially necessary to human liberty and happiness. Sir, 
priests and kings, the former of every denomination, not 
the Catholic alone, have conspired in all countries and 
nations to enslave mankind. It has been a received maxim in 
Europe, that tlie Idng should govern the priest, and the priest 
the people. What have our fathers thought upon the subject? 
In many of the State Constitutions the clause has been 
inserted. It has been thought wise and proper by their 
framers. A similar feature is found in our present Con- 
stitution. In conclusion, I have neither the strength nor 
the ability to do justice to the subject; I therefore simply 
say that I hope the clause will be retained by the good 
sense of this House." 

Judge Baylor was a good lawyer and an excellent judge, 
and his pure character and professional qualifications were 
exemplary and elevating to both the bar and the bench of 
his time. Some of his decisions are reported by Mr. 
Dallam, and while, like those of his associates at that 
period, they are terse and seemingly without much refer- 
ence to precedents, they manifest an earnest search for 
truth, and a conscientious dispensation of justice. He died 
at his residence near Independence, in Washington County, 
in December, 1872, and the Baptist denomination has 
perpetuated his name and memory by " Baylor University," 
named in his honor. 



78 BENCH AND BAR OF TEXAS. 



RICHARD MORRIS. 



The subject of this sketch was a native of Virginia, and 
was born in Hanover County on the 27th of December, 
1815. His father, Richard Morris, was a gentleman of cul- 
ture and a lawyer of distinction, and for many years prac- 
ticed his profession, with much success, in Hanover and 
the adjoining counties. But having inherited an ample 
fortune, he was independent of the remuneration of his 
practice, and never gave to the study of law that assiduity 
which is necessary to the attainment of the highest profes- 
sional eminence. While he had but little taste for politics, 
and sought no political preferment, he was a man of great 
popularity, and was elected to the Legislature when he was 
not a candidate for the position. He was also elected a 
member of the Virginia Convention of 1829, which was 
convened to frame a new Constitution for the State, and in 
that body of truly great men he performed his part with 
credit to himself and his constituents. 

At the age of fourteen years Richard was sent to the cele- 
brated Burke High School, in Richmond, to be prepared for 
a collegiate course. At this school, which was at that time 
perhaps the most noted in the State, he remained two years, 
and then entered the University of Virginia. Here he pur- 
sued an academic course during the two succeeding years, 
and then began the study of law in the office of his father. 
In the fall of 1835, he returned to the University and pur- 
sued his studies in the law department one session. 

In 1838, having obtained his license, he removed to 
Texas and located at Houston, where he commenced the 
practice of his profession. He soon afterwards formed a 
copartnership with James H. Davis, Esq., a young man 
who had just graduated in both the academic and law de- 



RICHARD MORRIS. 79 

partments of the University of Virginia. They began their 
professional career under the most favorable auspices, and 
with the brightest prospects, but their copartnership was 
soon dissolved by the death of Mr. Davis, which occurred 
in the summer of 1840. 

Soon after the death of his partner, Mr. Morris changed 
his residence to the city of Galveston, where he continued 
his practice alone and with great success. So rapid was 
the rise of his reputation that before he was twenty-six 
years of age President Lamar voluntarily appointed him to 
the high and responsible oflSce of judge of the first judicial 
district, which ex-officio made him one of the judges of the 
Supreme Court of the Republic. 

Ill the fall of 1841, soon after his appointment to the 
bench, Judge Morris married Miss Mary Love, of Galves- 
ton, a lady highly accomplished, and of the most amiable 
qualities, and who was in every respect worthy of her hus- 
band. She was the daughter of Hon James Love, formerly 
a representative in Congress from Kentucky, and after- 
wards a member of the Convention of 1845, which formed 
the first Constitution of the State of Texas. He was sub- 
sequently judge of the first judicial district, and then of the 
criminal courts of the Houston and Galveston district. 

The career of Judge Morris on the bench was able and ex- 
emplary. While he was the youngest judge within the Re- 
public, the lawyers who practiced before him were soon 
convinced of the wisdom of President Lamar in appointing 
him to the position. In the trial of cases he listened to 
both sides with patience, courtesy and respect, and no 
judge ever held the scales of justice more evenly. He dis- 
charged the duties of this office nearly four years to the 
perfect satisfaction of the members of the bar and of the 
people, and appeals were rarely taken from his decisions. 

Judge Morris attended three sessions of the Supreme 
Court of the Republic, at that time held by the district 
judges sitting in banc, and some of his decisions and opin- 
ions in important and diflicult cases are found in Dallam's 
Digest, which speak for themselves. Of these the most im- 
portant are : Forbes, Brooks & Co. v. Wm. G. Hill, Dallam, 



80 BENCH AND BAR OF TEXAS. 

p. 486 ; Allcorn, Amclr. v. Sweeny, i6., p. 494 ; Taylor v. 
Duncan, lb. 514 ; Walker & Walker v. McNiels & Calder, lb. 
541 ; Hamilton v. Black's Admr., p. 586 ; Morris v. McKin- 
ney, p. 619, and Carr, by Monaghan, guardian, v. Wellborn, 
p. 624. 

These opinions are referred to mainly to show that they 
were written by a man of education %nd uprightness, who 
had studied and understood the principles of both law and 
equity. They also show the highest order of judgment, 
discretion and love of justice in applying these principles 
to the variety of difficult cases submitted for his decision. 
No lawyer would conclude from reading his opinions that 
they were written by one so young in years. The verdancy 
of his youth is hidden by the hoary locks of wisdom. It 
will be observed that there was never a dissent from his 
opinions, but a uniform concurrence in all his views. 

While he was in the prime of his usefulness and vigor 
that fatal besom which has so often and sorely afflicted 
whole communities of the South, swept over Galveston, 
and in his twenty-ninth year Judge Morris fell a victim 
to yellow fever, and died on the 19th of August, 1844. 

It may be truly said of him that he was an enlightened, 
able and impartial judge. Upon the bench he was cour- 
teous, dignified and patient, and in society he was a gentle- 
man of refinement and polish. He was an ornament to the 
Texas bench, and no judge ever laid aside a more spotless 
and unsullied ermine. 



WILLIAJVI B. OCHILTREE. 81 



WILLIAM B. OCHILTREE. 



The subject of this sketch was born in Cumberland 
County, North Carolina, on the 18th of October, 1811. 
His educational advantages were slender, and he removed 
when quite young to the Territory of Florida, thence to 
Alabama, where he was admitted to the bar, and entered 
upon the practice of his profession. In 1839 he removed 
to Texas, and settled at Nacogdoches, where he soon 
acquired a large practice. 

The bar of Nacogdoches was at that time noted for legal 
ability, and was justly regarded as one of the most distin- 
guished in the Southwest. It was adorned with such 
professional luminaries as Thomas J. Rusk, A. Pickney 
Henderson, K. L. Anderson, Royal T. "Wheeler, O. M. 
Roberts, Thomas J. Jennings and others, whose genius 
elevated and embellished the jurisprudence of the Repubhc 
and State ; but Mr. Ochiltree was equal to the requirements 
of success, and to the severe test which a claim to eminence 
demanded, and was soon recognized as one of the most 
skillful and logical, as well as one of the most learned 
advocates at the bar. While he was deficient in general 
learning, his vigorous mind grasped and embraced the 
subtleties of law with an alacrity and comprehension Avhich 
placed him in the first rank of the profession. His mind 
was always clear and ready, and his statement of facts was 
so plain, his application of law so lucid, that no ingenuity 
of argument, no skill of abstraction could pervert the 
meaning or obscure his position. 

In 1842 he was appointed judge of the fifth district of 
the Republic, which made him ex-ojicio one of the judges 
of the Supreme Court. His decisions are reported by Mr. 
6 



82 BENCH AND BAR OF TEXAS. 

Dallam, and though rendered at that early day, are not 
without interest, especially that in Titus v. Hardin, and in 
the Republic v. the famous Monroe Edwards. 

In 1844 Judge Ochiltree was selected by President Jones as 
a member of his cabinet, and was appointed Secretary of the 
Treasury, and in November, 1845, was transferred to the 
Attorney-Geneial's office. In the former position he 
gathered the knowledge of finance, and in the hitter, his 
familiarity with criminal jurisprudence, which made him 
afterwards distinguished as a financier, and particularly as 
a successful criminal lawyer. 

Upon the annexation of Texas to the United States, he 
was elected a delegate to the Convention which framed the 
Constitution of the State, and was an active and prominent 
member of that body. This convention was composed of 
the ablest men of Texas, and the result of their labors is 
an everlastino; monument of their wisdom. The Constitu- 
tion with which the new State was launched into the Union 
has no superior in statesmanship in the history of organic 
law. 

After the adjournment of the Convention he was appointed 
judge of the fifth judicial district, but soon returned to 
the bar, and for ten years devoted himself without inter- 
ruption to the practice of his profession. His practice was 
extensive, and it was during this time that he achieved some 
of his greatest professional triumphs. His popularity was 
great, and he received the familiar sobriquet of Buffalo 
Head, which was given him in consequence of the peculiar 
formation of that member, which was remarkably large 
and encephalic, indicating intellectual powers of the highest 
order. 

In 1855 he was a member of the sixth Legislature, and 
was one of the most able and conspicuous members of the 
House. He was chairman of the judiciary committee, and 
his speeches upon measures affecting the public debt and 
the public lands were able and eloquent, and his views 
chiefly moulded the policy of the State in regard to those 
questions. His speech in favor of the civil-law doctrine of 



WILLIAM B. OCHILTREE. 83 

forced heirship, and against the adoption of the statute of 
wills, while not so effective, was likewise able and inter- 
esting. 

As an orator Judge Ochiltree had few equals at the Texas 
bar, possessed of a clear and stentorian voice, his elocution 
was vehement and impassioned and swept the field of debate 
like a resistless tempest. The brilliant flashes of his genius 
and the sudden outbursts of his natural eloquence often 
surprised and confounded his opponents and charmed his 
audience into a sympathy with his views which gained him 
many a narrow success, both at the bar and in the halls of 
legislation. 

In 1859 he removed to the town of Marshall, and in 1861 
was chosen a member of the Convention which adopted the 
ordinance of secession, and was one of the signers of that 
instrument. He was elected as one of the delegates to the 
Provisional Congress of the Confederate States at Mont- 
gomery, and his ability gave him great influence in that 
distinguished assembly. When hostilities began he resigned 
his seat in order to transfer his services to the field, and, 
returning to Texas, soon raised a regiment of infantry 
which was attached to Walker's division, and which he led 
with conspicuous gallantry ; but owing to ill health he re- 
signed the command of his regiment in 1863 and returned 
to his home. His health continued to decline, and, while, 
he watched the progress and culmination of the strife with 
the most intense interest and anxiety, he was no longer able 
to participate in public aflViirs, and being aware of the fatal 
character of his decline he devoted his time to settino- his 
house in order, became a member of the Episcopal Church 
and died in the faith of Christianity at Jefferson on the 27th 
of December, 1867. 

Judge Ochiltree saAv Texas through all the phases of her 
existence, save the last. He had seen her as an indepen- 
dent sovereign nation, as a prosperous State of the Union, 
as a gallant member of the Confederacy and as a conquered 
province, degraded by military rule, and it is a pity that he 
did not live to see her risen lite Thebes from hea- smould- 
ering ashes and clad in the robes of a new prosperity. 



84 BENCH AND BAR OF TEXAS. 

The public services of Judge Ochiltree were characterized 
by a patriotic devotion to the welfare of his State, and his 
ability and fidelity made a lasting impression upon every 
sphere of his public duties, and elevated every position 
which he held. During a period of thirty years his name 
is closely connected with the history of Texas, and she will 
preserve it as of one of her truest and most useful citizens. 

In social life he was generous and kind, courteous and 
affable in his demeanor to all classes and attracted the regard 
of all who approached him. He was greatly beloved by 
his family, esteemed by his neighbors and universally 
reverenced by his fellow-citizens. 



ABNER SMITH LIPSCOMB. 85 



Abner smith Lipscomb. 



This great and good man was born in Abbeville District, 
South Carolina, on the 10th of February, 1789. His 
parents were natives of Virginia, and emigrated to South 
Carolina prior to the war of the Revolution, in which his 
father bore a patriotic part. His early scholastic advant- 
ages were only such as the common schools of that period 
afforded. He studied law in the oflSce of John C. Calhoun, 
and in the glare of his tutorship imbibed those beams of 
greatness which kindled the fires of genius that after- 
ward blazed along his own pathway. The inspirations of 
such a nursery and the impressions which he received from 
the master mind of his distinguished preceptor, blending 
with the impulses of ambition and natural endowments, 
Avrought into the plastic mould of his mind qualities which 
afterward expanded into an illustrative type of true great- 
ness. He often referred to the beneficial and stamping in- 
fluences of his early associations, and cherished with just 
pride the memory of his tutelage. 

In 1811, having obtained his license, he removed to St. 
Stephens, on the Tombigbee River, in Alabama, and entered 
upon the practice of his profession. His energy, fidelity 
and integrity soon commanded an extensive and lucrative 
business, while his steady and vigorous application gath- 
ered a knowledge of law which destined him for the highest 
judicial sphere. He was married iu 1813 to Elizabeth 
Gains, daughter of a planter residing in the Mississippi 
Territory ; but patroitism shared his nature more largely 
than the sentiments of professional devotion, or even the 
tenderest conjugal affection, and he soon afterward broke 
away from the society of his young wife and the emolu- 
ments of his practice and responded to a call for troops to 



86 BENCH AND BAR OF TEXAS. 

quell the hostile demonstrations of the Indian tribes along 
the Southern frontier, excited by the war of 1812. When 
quiet was restored he returned to St. Stephens and resumed 
his practice, but was soon called again into public service of 
a different character, in which he spent the greater portion 
of his after life. 

He had been a member of the Territorial Legislature, 
and upon the organization of the State government in 1819, 
he was appointed, when but thirty years of age, one of the 
circuit judges, who, sitting in banc, constituted the Supreme 
Court of Alabama. In 1823 he was made chief justice of 
the State and held that position eleven years. His opinions 
are presented in the first ten volumes of Alabama Reports. 

In 1835 he resigned his seat upon the bench and removed 
to the city of Mobile, where he resumed his practice and 
increased the high reputation which he had already achieved 
at the bar. His superb social qualities and congenial dis- 
position made him popular with the people. He had always 
been a staunch and consistent Democrat, and in 1838 was 
nominated by the Democracy of Mobile as a candidate for 
the Legislature ; and so great were his personal popularity 
and the weight of his character that he was elected over the 
Whig candidate, notwithstanding that the latter party had 
an overwhelming majority in the city, and had been in the 
ascendent for many years. 

As a legislator, his long experience upon the bench, his 
thorough knowledge of the law, and clear perception of the 
defects of the existing system, enabled him to eftect many 
measures of reform in Alabama jurisprudence. Through 
his influence the common-law system of pleading was 
simplified and the judicature of the State rendered more 
uniform and expeditious. 

In 1839, ])efore the expiration of his term in the Legis- 
lature, he removed to Texas. His fame as a lawyer and 
jurist had preceded him, and he immediately commanded a 
large practice. He at first resisted all attempts to draw 
him into public life, but finally consented upon the earnest 
solicitations of President Lamar to accept the post of 
Secretary of State under his administration. He warmly 



AB.NER SMITH LIPSCOMB. 87 

espoused the policy of annexing Texas to the Union, and 
brought all his influence to bear upon the accomplishment )^ 
of that object. He was elected a member of the Conven- 
tion of 1845, and introduced the resolutions accepting the 
terms of annexation proposed by the government of the 
United States. These were adopted, and the convention 
proceeded immediately to form a Constitution for the new 
State. Here again his legal knowledge and judicial expe- 
rience enjibled him to render most efficient service in the 
construction of the organic law, and those beneficent pro- 
visions in regard to homestead exemptions and marital 
rights which adorn the Constitution of Texas, and which 
excite universal admiration, are largely the work of his 
genius and influence. 

The merit of his services in the Convention of 1845 was 
duly recognized, and upon the adoption of the Constitution 
by the people in 1846, he was appointed by Governor Hen- 
derson one of the judges of the Supreme Court of the 
State, and from this time his life was devoted to the devel- 
opment of Texas jurisprudence. He held the position of 
associate justice eleven years, and until the time of his 
death, which occurred at Austin during the session of the 
court, on the 30th of November, 1856. 

His opinions are contained in the first seventeen volumes 
of Texas Reports. They are more numerous than those of 
either of his associates, and settled most of the questions 
of practice which arose during that time under the mixed 
system which obtains in the Texas courts. 

The life and character of Judge Lipscomb are kindling 
incentives to that honorable ambition which finds its satis- 
faction only in the distinguished performance of high public 
trusts, to that patriotism which derives more happiness 
from the faithful discharge of public duties than from the 
attainments of the most coveted private ends, and to that 
rectitude which finds its reward in the commendation of 
all good men, and in the smiles of Heaven which mirror 
themselves upon the unruffled surface of a clear conscience. 

When such men die, it behooves us to pause and contem- 
plate the instructive lessons which their lives have inscribed 



88 BENCH AND BAR OF TEXAS. 

upon the great chart of human existence, for the purpose 
of paying proper reverence to their memories, and to catch 
the noble inspirations which continue to emanate from the 
tracks of departed worth. To review and record the qual- 
ities of one who has reaped the highest esteem of his 
fellow-citizens, is a custom which finds its sanction throuffh 
all ages, down to the very depths of antiquity, and to which 
we owe the preservation of the great lessons of virtue, the 
landmarks of greatness, and the beacons of fame which 
have given light to the generations of earth, and pointed 
mankind to a higher and nobler sphere. 
V Hence, to cite examples of the different features of 
greatness is by no means a difficult task, but to analyze and 
interpret the different measures and varieties of qualities 
which enter into its composition is a task of another im- 
port, and we will find ourselves met by insuperable barriers 
at the very threshold of the investigation. There we will 
find Genius, with its dazzling train, mocking at every effort 
to discover its source, and by its side Wisdom, peering far 
beyond the superficial scope of vulgar gaze. There Honor's 
helmet flashes an effulgence which, but for its rarity, would 
kindle a philanthropy that would glorify the world ; and 
there is Charity, distilling its soothing drops into the hearts 
of the unfortunate, and healing the festering ulcers of 
human woes. Memory is there with its tablet of indelible 
inscriptions. Perception is there with the glare of its 
penetrating glance ; and there is Judgment, with the staff 
of reason in one hand and the plumb-line of justice in the 
other. There Virtue marshals her white-robed train, while 
hallowed Piety reigns the sceptered lord of all. 

What pen can depict the characters of this gorgeous 
court? What embassador from the realms of metaphysics 
can penetrate its secret councils and describe its rivalries 
and harmonies? Surely, we must retire from the laby- 
rinthian threshold and await the denoument of the heralds of 
action. With this conviction let us return to the subject 
of this sketch, and confine ourselves to the contemplation 
of qualities whose sources we may not invade. 

As a lawyer, Judge Lipscomb possessed every quality of 



ABNER SMITH LIPSCOMB. 89 

pre-eminence. He was thorouojhly familiar with the funda- 
mental principles of law, and skilled in all the details of the 
profession. It was the study of his life, and he traced 
every legal principal to its source. He loved the law as 
the grandest edifice ever erected by the mind of man, and 
as the receptacle into which has flowed the wisdom of ages. 
He recognized the truth of the saying of Sir Henry Fin«h, 
that " the sparks of all the soiences in the world are raked 
up in the ashes of the law," and he adopted the maxim of 
Lord Kenyon, that melius est jpetere fontes quam sectari 
vivos (it is better to seek the fountains than to intercept the 
streams). Onthebenchthecareerof Judge Lipscomb would 
have adorned the ermine of any country, and in any age. As 
conscientious and upright as Sir Matthew Hale, he possessed 
much of the penetrating vision and brilliant perception of 
Lord Mansfield, the equitable poise of Eldon and the intui- 
tive judgment of Hardwicke. His decisions are delivered in 
a neat, plain and lucid manner. His style is pure without 
ostentation, his sentences forcible without verbosity, and 
his judgments fixed immovablv upon the firm foundations 
of law. His quotations of authority are never profuse, 
but always go straight to the point of issue. While he had 
due reverence for established precedent, he took care to 
test it in the retort of his own logic, and to pass it through 
the crucible of his own judgment. His comprehensive and 
acute knowledge of general principles enabled him with or 
without precedent to apply the law with unerring hand to 
the vindication of justice. But these comments may be 
useless, if not tedious to the professional reader. The de- 
cisions of Judge Lipscomb speak for themselves. They 
are the best monuments of his genius ; the brightest and 
most durable urn of his greatness. They glare with im- 
mortal splendor upon the pages of Texas jurisprudence, 
and to them let the professional reader address himself for 
the great lessons which they teach — lessons inculcating 
the example of an able lawyer, an honest man and a learned 
and upright judge. 

Judge Lipscomb was a Christian, both in faith and in 
manner of life, and as a biblical scholar he had few supe- 



90 BENCH AND BAR OF TEXAS. 

riors. He delighted in social intercourse, and his gentle 
and QOTceable manners and instructive conversation made 
him a welcome guest in every circle. If his countenance 
sometimes wore an expression of gravity, it was but the re- 
flection of intense thought, and was dispersed at the least 
interruption of his meditations. He was a man of warm 
attachments and tender sympathies. He was twice mar- 
ried. He lost his first wife in 1841, and in 1843 was mar- 
ried to Mary P. Bullock, daughter of Dr. Thomas Hunt, of 
Austin, who survived him. 

The home circle was to him an altar of pure devotion, 
from which continually arose the incense of domestic fe- 
licity. Hospitality and charity were among his most prom- 
inent qualities, and the best side of his character was turned 
away from public gaze. While these may perish with the 
hearts which they warmed and with the memories upon 
which they were inscribed, the legislative and judicial rec- 
ords of two great States beai- everlasting testimony to his 
patriotism as a citizen, his ability as a judge, and his worth 
as a man. 

«« Fruits of a genial morn and glorious noou.. 
The deathless parts of one who died too soon." 



^ 



EOYAL T. WHEELER. 91 



ROYAL T. WHEELER. 



Chief Justice Wheeler was born in the State of Vermont 
in 1810. While young he removed with his father's family 
to Ohio, and there obtained a respectable education and 
prepared himself for the bar. Having obtained his license 
and being thrown upon his own resources, he emigrated 
in 1837 to Fayetteville, Arkansas, and became the partner 
of William S. Oldham, who was subsequentl}^ a judge of 
the Supreme Court of that State, and a Senator from Texas 
in the Confederate Congress. In 1839 he was married to 
Miss Emily Walker, an accomplished young lady of Fay- 
etteville, and soon afterwards removed to Nacogdoches, in 
Texas, and formed a law copartnership with Keudreth L. 
Anderson, the Vice-President of the Eepublic. In 1842 
he was elected district attornev, and in 1844 was promoted 
to the district bench, which made him also a judge of the 
Supreme Court, as that was then composed of the district 
iudo;es sittino; in banc. 

When the State government was organized, in 1845, the 
sagacity of Governor Henderson discerned the ability and 
merit of the young jurist, and he was appointed one of the 
associate justices of the Supreme Court, and in 1851 Avas 
elected to the same position by the people. In consequence 
of an increase in the salaries of the judges in 1856, he re- 
signed, in company with his associates, and was re-elected 
under the new system of emoluments ; and upon the resig- 
nation of Chief Justice Hemphill, in 1838. to accept a seat 
in the United States Senate, Judge Wheeler was chosen 
chief justice of the Supreme Court, and held that position 
with distiniruished ability until the time of his death, which 
occurred in Washington County, Texas, in the spring of 
18(i4. 



? 



92 BENCH AND BAR OF TEXAS. 

As a lawyer Judge Wheeler was thoroughly versed in 
the learning of his profession. He was a close, attentive 
and apt student, and his knowledge was rooted in the very 
depths of the science, while the natural bent and quality of 
his mind led to a comprehension of the minutest features 
as well as the grandest outlines of jurisprudence. While 
at the bar of Arkansas ha had made himself an efficient 
special pleader under the strict S3''stem of the common law 
practiced in the courts of that State, and he was quick to 
discover the points upon which the merits of a case hinged. 
His mind was too matter of fact in its bent and too exact- 
ing in its candor to indulo;e in the mere visions of imao;in- 
ation, and he disdained all its " flower-decked plats and 
blooming parterres." He was not distinguished as a rhe- 
torician, but he knew how to command the minds and hearts 
of men, and had great power before a jury. These quali- 
ties seemed to have designed him especially for a great 
criminal lawyer, and his knowledge of criminal jurispru- 
dence was pre-eminent. His mind seemed particularly con- 
stituted for sifting and weighing the circumstances which 
form the qualities of guilt and the varied ingredients of 
crime. But, notwithstanding these prominent characteris- 
tics, so full-orbed and luminous were his legal attainments 
that it is difficult to assign superiority to his knowledge in 
any particular department. He possessed a vigor of intel- 
lect, an inquisitiveness of mind, and a practicality of dis- 
position which led him to look beyond the existence of the 
statute to an inquiry into the origin and reason of the law, 
and he had traced the principles of every branch to their 
source. 

As a judge, Chief Justice Wheeler planted himself firml}^ 
upon principles and fundamental truths, and from these his 
mind, armed with the lance of acute penetration, clad in 
the mail of a sound judgment, and disciplined by a severe 
training and correct association, penetrated every combina- 
tion of circumstances and defied every challenge of emer- 
gency. He detested fallacy and showed it no quarter, 
while his plain logic intersected ambiguity with the straight 
path of truth. As Sir Richard Steele said of Lord Chief 



ROYAL T. WHEELER. 93 

Justice Holt, *' he always sat in triumph over, and in con- 
tempt of, vice; he never searched for it, or spared it 
when it came before him. At the same time he could see 
through the hypocrisy and disguise of those who have no 
pretense to virtue themselves, but by their severity to the 
vicious." He was a close observer, quick to read the hearts 
of men, to interpret their motives and to detect the springs 
of human action. 

These accomplishments can not be said to be the work of 
srenius, for Judg-e Wheeler was not thus indebted to nature 
for his gifts. They were the fruits of unceasing effort, of 
vigorous systematic application, a rectitude of purpose and 
a determination which nothing short of the achievement of 
the highest and noblest ends could satisfy. He commanded 
success and he deserved it. 

Judge Wheeler possessed a kind and amiable disposition, 
and souirht the attainment of iustice bv the most charitable 
means. The warp of his justice was woofed with leniency, 
and he tempered the rigorous requirements of law with the 
gentle mandates of equity, yet his vindication of right and 
truth was always prompt, pronounced and unequivocal. 

His professionnl traits were fashioned in the mould of 
law, his moral in the cast of rectitude. The simplicity of 
his virtues admitted no vanity or affectation, and he enjoyed 
with like modesty the honors of his high office and the venera- 
tion of society ; and while he was capable of strong prejudices 
when quickened by perverse opposition, a habitually serene 
temper asserted the benevolence of his nature. The quali- 
ties of his heart were not strained but flowed in ijushinor 
torrents from deep and unfailing fountains, and their 
exercise found among his friends and associates a rejiprocity 
which but intensified their character. 

The venerable Judge Kobert S. Walker, a long and 
intimate acquaintance of Judge Wheeler, speaks of his 
private character in the following graphic terms : — 

*' Judffe Wheeler was a man of a sino-ularl v rare combina- 
tion of character. His presence was benign, and his 
manner frank and open, inviting approach, and cordial and 



f 



94 BENCH AND BAR OF TEXAS. 

affable to all, but it forbade coarseness, levity or undue 
familiarity. 

" He carried about him an atmosphere of purity and culture 
so marked in his countenance and conversation that it was 
felt as a living jDresence. In his intercourse he was free 
and congenial ; his conversation was full of variety and 
interest, and free from frivolity; and he was always 
severely independent and sincere in the expression of his 
sentiments. He never allowed the forms of politeness or 
silence on his part to be construed as an apparent indorse- 
ment or seeming approval of a sentiment that was false in 
morals, but he never failed to leave the impression of his 
unequivocal opinion as to the right and the truth. His 
warm, confiding social qualities drew around him a wide 
circle of devoted friends composed of the purest and best 
of all classes and professions. He never pursued the 
acquirement of wealth, nor sought influence for the purpose 
of advancing himself. He coveted neither. His aspirations 
were far above the former, and his ambition was too hio-h 
to be gratified through the agency of the latter. Success 
with him was nothing, if not achieved by merit rather than 
by the doubtful schemes of contrivance." 

The decisions of Judge Wheeler extend through twenty- 
six volumes of Texas Reports, and are characterized by a 
profound knowledge of law, a thorough comprehension of 
the facts in all their legal bearings, and by an exposition of 
legal principles, so lucid and logical that his views readily 
receive the homage of assent and satisfaction. His style 
is strong, vigorous and dignified without any e:ffort at 
ornation or embellishment, or seeming choice of expression, 
except to convey his ideas in the most forcible and cogent 
manner; and his opinions notably avoid the expression of 
mere dicta which affirm no principle authoritatively, and 
tend onlv to confuse and mislead the mind of the youns: 
practitioner. 

While stern and unyielding in his views, he was averse to 
disputation, and maintained a respectful deference to those 
of his associates. His pure and polished professional 



ROYAL T. WHEELER, 95 

ethics cemented the most cordial relations between himself 
and the other members of the bench and with the bar. Mr. 
Justice West, an eminent judge of persons, as well as of 
the law, says: " During his long career upon the bench, 
Judge Wheeler frequently differed in hio opinions from the 
other members of the bench, but owing to a constitutional 
sensitiveness which made him loth to controversy, he, on 
most occasions, contented himself with directing the reporter 
to note his dissent. At times, however, when his strong 
conviction of truth and justice overcame his abhorrence of 
debate, he would advocate his views in a dissenting opinion, 
rich in legal lore, and even eloquent in the vindication of 
truth against what he conceived to be the errors of prece- 
dent. On these occasions he disclosed that beneath his 
modest and unassuming exterior slept an iron will and an 
inflexible purpose, which nothing could swerve from the 
path of duty. 

In these struggles he more than once arrested the current 
of judicial decisions, which by legislative enactments were 
made to flow in the channel he had marked out as the true 
course of justice. His dissenting opinions in Coles v. Kel- 
sey, 24 Texas; Sylvanus v. AValker, 3 Texas; Snoddy v. 
Cage, 5 Texas, form epochs in our judicial history." 

In politics Judge Wheeler was imbued with the principles 
of the old Whig party. He was, however, a warm advo- 
cate of annexation, and in 1861 ardently espoused the 
policy of secession as the only alternative that afforded any 
hope for the South. His mind was naturally inclined to 
the forebodings of melancholy, which had been increased by 
long and intense mental labor, and contemplating the clouds 
which hung over the future of his country and the pros- 
pects of his family, to which he was devoted, he yielded to 
the influences of despair. 

It has been said that all great passions are born in soli- 
tude and nourished in retirement ; and that they are tamed 
and degraded by the common intercourse of society, and 
utterly lost and extinguished in public companies, crowds, 
and assemblies ; but in the instance of Judge Wheeler we 



{ 



96 BENCH AND BAR OF TEXAS. 

have a brilliant light, kindled in the blaze of the forum, 
shining with resplendent glare upon the bench, and shed- 
ding its beacon light upon all the affairs of men, waning 
away and extinguishing itself in the damp of despair — the 
noblest intellect mouldering in the rust of inaction and the 
canker of despondency. Judge Wheeler, in a fit of mental 
aberration died by his own hands ; but the jurisprudence 
of Texas embalms his ability and his virtues in the golden 
urn of everlasting remembrance and veneration. 



GEORGE F. MOORE. 97 



GEORGE F. MOORE. 



George Fleming Moore, for many years chief justice of 
the Supreme Court of Texas, was born in Elbert County, 
Georgia, on the 17th day of July, 1822, and was the 
seventh son of his parents. "While he was young his father 
removed his family to Alabama, and, being a prosperous 
planter, placed George in the University of that State, and 
subsequently sent him to the University of Virginia ; but 
he was not a graduate of either. In 1842 young Moore 
began the study of law at Talladega, and in 1844 obtained 
his license and entered upon the practice of his profession. 
Being now dependent entirely upon his own resources, his 
ambition sought a more propitious field, and in 1846, being 
attracted by the glittering prospects of the new State, he 
removed to Texas and located at Crockett, where he found 
an ample scope for his genius and energy in the practice of 
a new and undeveloped system and in its application to the 
rapid growth of the country. He soon attained a promi- 
nent position at the bar, and in 1854, allured by the large 
legal business which centered at the State capital, he re- 
moved his office to Austin, but a year or two afterward 
settled at Nacogdoches, as the law partner of Richard S. 
Walker, and the firm became one of the most noted in the 
State. 

In 1858 Messrs. Moore & Walker received the appoint- 
ment of State Reporters, and prepared the twenty- 
>econd, twent3'^-third and twenty-fourth Texas Reports, 
which have been made by statute models for all sub- 
sequent issues. During the civil war Mr. Moore 
served as colonel of the Seventeenth Regiment of Texas 
cavalry ; but on being elected in 18(52 an associate 
justice of the Supreme Court, he resigned his office in the 



98 BENCH AND BAR OF TEXAS. 

army and accepted the position. When the reconstruction 
era of President Johnson began in 1866, he was again 
elected to the Supreme bench and was made chief justice 
of the State ; but upon the abrogation and overthrow of 
the re-union policy of the President by the Federal Con- 
gress in 1867, he was removed from office by a supreme 
military authority, which swept away every function of re- 
turnins: concord from the South as being an obstruction to 
the schemes of the Republican party. 

Judo;e Moore had maintained throuo-hout the war a 
staunch and dignified position in support of civil supremacy 
and judicial authority, and in 1864 engaged in a conflict 
with the military power, which exalted his character, both 
as a judge and a patriot. He had issued writs of habeas 
corpus for the production of some citizens who were held 
in military custody, and doomed as sacrificial examples. 
These writs had been disregarded, and rising to the full 
height of judicial dignity and manly opposition to that 
which he considered an unwarrantable outrage upon the 
dearest and most sacred rights of a citizen, he declared his 
opinion in the State v. Sparks, et al., 27 Texas, in terms 
of such scathing reprimand that the military authorities 
yielded obedience to his mandates, and the citizens were 
saved. 

From the time of his removal from office in 1867 until 
1874 he practiced his profession in Austin ; and Avhen the 
people in 1874 resumed control of the State government, 
which had been taken from them and supplanted by an 
odious military rule seven years before, he was again 
appointed associate justice of the Supreme Court, and 
upon the adoption of the Constitution of 1876, he was 
elected to the same position by the people. On the resig- 
nation of Chief Justice Roberts in 1878, Judge Moore was 
appointed by the Governor as his successor, and was soon 
afterwards elected chief justice of the State by more than 
one hundred thousand majority of the popular vote, and 
held this position until 1881, when, in consequence of ill 
health and impaired eye-sight, he resigned, and sought that 
repose from his long and irksome labors, so sweet to those. 



GEORGE F. MOORE. 99 

who, full of honors and full of years retire from a. long 
public service with a mind conscious of duty wellperformd. 

In contemplating the character of Judge Moore we are 
dazzled by the uniformity and constancy of its glow. 
There are no jetting traits to serve as landmarks to the 
analysis. There are no conspicuous planets or brilliant 
constellations to arrest our o-aze ; no glowingr meteors flash 
along the sky ; no auroras or milky ways usurp broad 
tracks in the firmament ; but the whole canopy, from the 
zenith to the horizon blazes with one common, uniform 
light, such as flows from the full, round orb of day. The 
qualities of his head and heart were in such constant and 
exact equipoise that it is difiicult to determine which was 
the most vigorous of his virtues, or what was the chief 
mainspring of his action. No particular faculty of his mind 
seemed to claim superiority or assert predominance ; and, 
as an advocate, if there was one trait which miglit be desig- 
nated as the key to his success, it was the ca[)acity of 
making a lucid presentation of his case — for presenting a 
concise, synthetical summation of facts, a forcible and 
convincing application of the law, for disrobing his adver- 
sary of all false colors and superficiality, and whittling the 
question down to the very hinge of fact and gist of legal 
merit. He possessed a keen perception, and his mind was 
disciplined by habits of correct association. His powers 
of analysis and abstraction were of a high order, and no 
complexity of law or complication of fact woven of the 
the warp and web of circumstances or artifice could escape, 
the glare of his penetration. He prepared his cases with 
great care, and fortified himself at every possible point of 
attack. 

On his first appearance at the bar of Texas, he was noted 
for his sedate, dignified manner and studious habits. Free 
from the frivolities and indiscretions which usually attend 
one of his age and conscious powers, he steadily pursued 
the path of success, and his conduct was early impressed 
with the mould of experience. His energy was indomita- 
ble and his determination undaunted by any obstacle which 
untoward circumstance could throw in his pathway. Cer- 



100 BENCH AND BAR OF TEXAS. 

tainty followed in the track of his virtues, and he cliixibed 
with a sure-footed pace to the proud height of his profes- 
sional eminence. 

In December, 1870, he was licensed to practice in the 
Supreme Court of the United States, and his arguments in 
Hanrick v. Barton and Cordova v. Hood et al. before that 
tribunal are replete with skillful analysis and logical pre- 
sentation. In the former he discussed the difference be- 
tween the Jus in re and the jus ad rem, and the distinction 
made by the courts in respect to the execution of deeds 
and contracts — the first being inoperative until completed 
and consummated, while the latter create obligations which 
may be enforced by appropriate judgment. He was suc- 
cessful in both of these cases, though the court was divided 
as to their merits. 

Upon the bench, Judge Moore was a Cato of integrity, 
an Aristides of justice, and an Eldon of equity elucidation. 
He was perhaps the best chancery lawyer that had sat upon 
the Texas bench, and had he presided in courts of separate 
and independent chancery jurisdiction his decisions would 
not have disparaged the most eminent Lord Chancellor that 
ever directed the impressions of the great seal, but would 
have glowed with a lustrous purity, doctrinal soundness, 
and logical clearness unsurpassed by the most luminous de- 
crees of Eldon, Hardwicke or Lyndhurst. 

He was equally eminent for his thorough knowledge of 
the intricate system of Texas land laws, and during the 
seven years he was excluded from the bench by military 
power, his practice in land cases extended throughout the 
State. His decisions upon questions arising from these 
laws, upon questions of official responsibility, and his dis- 
tinctions of the degrees of crime, form some of the most 
important features of Texas jurisprudence. While he 
maintained vigorously and successfully the sacred right of 
habeas corjms in The State v. Sparks, he also upheld in ex 
■parte, Coupland, 26 Texas, the constitutionality of conscrip- 
tion as a means of national defense, and in Keuchler v. 
Wright, 40 Texas, he held that the courts could issue the 
writ of mandamus to the heads of the executive depart- 



GEORGE F. MOORE. 101 

ment of the State government to compel proper perform- 
ance of duty, which had been denied by a majority of the 
court in the case of Bledsoe, Comptroller, v. The Interna- 
tional Railroad Company, which had been decided at the 
same term. His definition of express malice in Farrar v. 
The State, 42 Texas, and his distinctions as to what consti- 
tutes murder in the first and second decrees, are said to have 
elicited from Mr. Bishop the expression that they were the 
best he had ever seen. His dissenting opinion in Hender- 
son V. Beaton, 52 Texas, in regard to the constitutionality 
and construction of the act organizino- the Court of Com- 
mission of Appeals presents a clear view of the character 
and functions of that court, and of the power of the Legis- 
lature to provide means for the dispensation and promotion 
of justice. 

As an orator, Judge Moore was not endowed with the 
highest gifts of eloquence, but he possessed to an eminent 
decree that which Demosthenes declared to be the chief 
ingredient of eloquence. He possessed ''action;" not 
that which is confined to gestures of the limbs, or theatrical 
emotions of the body, but that action which indicates the 
sentiments with which w-e are inspired and impresses them 
into a rule of conduct, — an incentive to achievement, — a 
passion for duty, which engages the minds and convictions 
of others by its frankness and sincerity, and by the fer- 
vor of conscientious purpose. He w'as eloquent in the 
depth of his conviction, in the earnestness of his manner, 
in the logical train of his thoughts, in the force and power 
of his language, and in the moral mesmerism of the man. 
His arguments were always clear, logical and concise, and 
his oratory was more like a torrent which sweep, everything 
before it than that Ciceronian gentleness w^hich glides upon 
the waves of conciliation. He depended more upon the 
firm rod of reason than upon the fickle wand of suasion, 
and gained the citadel of conviction by assault direct and 
full in front, rather than b}^ the crouching maneuvers and 
circuitous paths of wile or allurement. He jjossessed a 
keen sense of honor, and was open and generous in all his 



102 BENCH AND BAR OF TEXAS. 

dealings, punctilious in his discharge of his public duties, 
resolute in the prosecution of every undertaking, and was 
all that Horace meant by his Justus ef tenax propositi vir. 

Judge Moore preserved a pure and courteous professional 
ethics and a dignified judicial decorum. He blended in an 
admirable manner the stern features of the judge with the 
sympathetic attributes of the philanthropist. He was par- 
ticularly kind in his demeanor towards the young members 
of the bar, and was always ready to extend to them a help- 
ing hand. His domestic and social qualities were as amiable 
and refined as his public and professional attributes were 
brilliant and elevated. He was married in Alabama in 1849 
to Miss Susan Spyker, an estimable lady, whose qualities 
of head and heart eminently fitted her to be the companion 
of her accomplished husband, and who is still living to 
cherish the memory of his virtues. He died on the 30th of 
August, 1883, in the City of Washington, where he was 
spending the summer for the purpose of recuperating his 
health, which had been for some time feeble and precarious. 

It is peculiarly sad to contemplate the death of a man 
of whom it is universally said by his fellow-citizens that 
he died too soon. But it is to the loss only that we 
should confine our regrets ; for it is a just consolation in 
contemplating our departure from this world, that all the 
great and the good die, and that a pathway marked by the 
footsteps of the Savior of mankind and trodden by count- 
less myriads of bright and shining feet, surely can not be a 
rough and unpleasant path ; but we have every reason to 
believe that death is but the curtain of life dropped behind 
us, before which expand the realms of eternal light. When 
our first parents beheld the setting of the first day's sun, 
saw it leaving them, it might be, forever, and beheld the 
darkness of the first night gathering around them, with 
what indescribable wonder and dismal forebodings they 
may have gazed upon the novel scene. But as it grew 
darker and darker, when they turned their eyes upward, 
what a beautiful panorama gradually unfolded to their 
view. The sun was gone, but lo ! new-born Cynthia and 



GEORGE F. MOORE. 103 

the beautiful stars, smiling in the mirth of their morning 
song. If, then, night can reveal such beauty, what incon- 
ceivable glory may not deck the canopy of death. 

These reflections are awakened by the contemplation of 
the death of him who forms the subject of this sketch. He 
walked through the world in the path of duty and conscious 
rectitude, and in the faith of piety, down to the brink of 
the valley, and when he stepped forth into its shadows, he 
no doubt caught the promised visions which flash from the 
blessing of the faithful servant. 



104 BENCH AND BAR OF TEXAS. 



A. J. Hamilton. 



Andrew Jackson Hamilton, one of the ablest men the 
Texas bar has ever produced, was born in Madison County, 
Alabama, on the 28th of January, 1815, and was admitted 
to the bar of that State in 1841. His educational advan- 
tages were the best that the schools of the new country 
afforded, and his preparation for the bar was inspired by a 
natural genius and ambition. 

In 1846 he emigrated to Texas, and located at Lagrange, 
where he attained such eminence in his profession that in 
1849 he was appointed by Governor Bell attorney- 
general of the State, and from that time made Austin 
his permanent residence. He served as the represen- 
tative of Travis County in the Legislature of 1851, 
and again in 1853, and was an active and zealous promoter 
of all measures for the general welfare of the State. In 
1856 he was an elector on the Buchanan ticket, and in 1859 
was elected to a seat in the United States Congress, as an 
independent candidate, in opposition to General T. N. 
Waul, the regular nominee of the Democratic party. He 
was a strenuous opponent of the policy of secession, which 
he considered impolitic and unjustifiable, and retained his 
seat in Congress after the other members from the seceded 
States had returned to their constituencies. He returned 
to Austin in the latter part of 1861, and was made the 
Union candidate for the State Senate, to which he was 
elected ; but Texas had now cast her lot with the Con- 
federacy, and he declined to take the required oath of 
qualification. 

In 1862, being still opposed to the purposes and progress 
of the war on the part of the South, he left the State, and, 
making his way through Mexico, repaired to the City of 



A. J. HAMILTON. 105 

Washington, and was immediately appointed brigadier- 
general of the Texas troops in the Union service. In 1865 
he was made Provisional Governor of Texas by President 
Johnson, as the most suitable person he could find in the 
State to effect his conservative plan of reconstruction. 
Governor Hamilton entered upon the duties of this office 
with an ardent desire to re-establish as easily and speedily 
as possible the former relations of the State to the Federal 
Union ; but in 1866 he was appointed an associate justice' 
of the Supreme Court, which was a field equally compati- 
ble with his taste and talent. He was still, however, deeply 
interested in the method and manner of reunion, and was a 
prominent member of the Reconstruction Convention of 
1868, in which he was the author and chief promoter of the 
liberal electoral bill and franchise measures, which were 
engrafted in the new Constitution, In 1870 he was the 
Conservative candidate for Governor, but was defeated by 
Judge E. J. Davis, the Republican nominee, in a contest so 
close as to require the intervention and decision of the 
military authorities. Returning now to the seclusion of 
})rivate life, he eschewed any further active participation in 
the political events of the period, and, falling into a de- 
cline of health, died in Austin during the month of 
April, 1875. 

Governor Hamilton was a man of great ability and a pro- 
found lawyer, and his professional career was remarkably 
successful. He was naturally endowed with uncommon 
powers of intellect, and his knowledge of law was scientific 
and thorouo;h. His manacrement of his cases was method- 
ical and practical, and commanded every element of honor- 
able success. While he embodied all the eminent qualities 
of a great lawyer, the characterizing features of his emi- 
nence, taken in the abstract, were asserted in a correct 
judgment, an accurate comprehension, and a perception 
that bordered upon intuition. His capacity for close dis- 
criminations and subtle distinctions, the apt and forcible 
communication of his ideas, the strength of his logic, the 
purity and simplicity of his diction, unfolded the most ab- 
struse doctrines and lurking points to the view and under- 



106 BENCH AND BAR OF TEXAS. 

standing of common sense, while the depth and pathos of 
his convictions and the candor of his arguments impressed 
his opinions upon the minds of the most obstinate and in- 
different. 

To his clients he was a faithful friend and counselor and 
deceived them with no apparitions of false hopes or spe- 
cious inducements to unjust and fruitless litigation. But 
he was sincere and conscientious in his dealings with them, 
and they trusted him with an implicit faith. 

As a judge of the Supreme Court he brought to the 
bench not only the qualifications of a thorough lawyer, but 
the requisites of an eminent jurist. His decisions, though 
comparatively few, are noted for their learning, dignity and 
force, and embrace some of the most important questions 
that arose during that unsettled period under the recon- 
struction laws. Chief among these is his opinion upon the 
question of ah initio rendered in 1868 in the case of Luter 
V. Hunter, 30 Texas, 690, and in Culbreath v. Hunter, 30 
Texas, 712, known as the Sequestration Cases ; in which he 
held that the States composing the Confederacy occupied a 
higher ground than the Confederate government, havinor 
been in their origin peaceful, legitimate and constitutional ; 
that they continued to exist notwithstanding the war with- 
out a hiatus or interregnum, and that the United States 
government had not interfered with the mere civil laws of 
the States, whether enacted before or during the war, ex- 
cept as to such laws as necessarily resulted from the war 
and such as were unconstitutional, or in hostility to the 
United States. 

It would have been well, indeed, for the interest of the 
whole country, if the doctrine enunciated in these cases had 
been accepted by the dominant party. Ten years of polit- 
ical chaos and stagnant blank in the historj' of the South 
would have teemed with prosperity, and the hostility of 
the heart would have ceased with the hostility of the 
sword. 

Governor Hamilton was equally gifted as a politician, and 
his short career in Congress was characterized by a states- 
manship which ordained him to a position of great influence 



A. J. HAMILTON. 107 

and usefulness in that body, had the star of Texas retained 
its peaceful glitter in the banner of the Union. He was 
sensitive of the wrongs and grievances of his section, and, 
while he acknowledged that revolution was justifiable and 
proper as a remedy for oppression, he differed from the 
great majority of the Southern people in regard to the right 
of secession, and believed that the constitution was the 
great arbiter and palhidium of American liberty, and that 
all wrongs could be adjusted by it and settled within the 
Union. 

He contended that if the right of secession existed at all, 
it was a reserved right, and that reserved rights were such 
as existed prior to the formation of the constitutional com- 
pact ; that no such right could have existed anterior to the 
adoption of the constitution, and that every right was 
affirmatively provided for in that compact either in express 
or general terms. 

At the close of his able speech on the state of the Union 
delivered in the House of Representatives in February, 1861, 
he said : " I care not for myself. I have made up my 
mind at the beginning of this trouble never to pause in my 
exertions because of the condition in which it would place 
me for the time being, either here or at home. I have not 
allowed one single motive of selfishness, if I know my own 
heart, ever to interfere with the exercise of what little judg- 
ment I have been able to bring to bear upon these great 
questions. I am solemnly impressed, however, with the 
condition in which I actually find myself. In traveling 
hither from my home, more than two thousand miles dis- 
tant, my foot pressed no spot of foreign territory. My 
eye rested on not one material object during my journey 
that was not a part and parcel of my country, as I fondly 
deemed it. When we assembled together, as far as I know, 
every State and Territory was represented upon this floor. 
The great fabric of the government was then complete ; 
but now, how changed ! When I go home it will be to find 
my pathway intercepted by new nationalities. Without 
ever having wandered from my native land, I must traverse 
foreisn countries if I would return. 



108 BENCH AND BAR OF TEXAS. 

" I might be excused for doubting my own identity. Surely 
I may be pardoned for having involuntarily prayed that 
this might be a troubled and protracted dream. Yet it is 
too true — too many evidences force conviction of the sad 
reality. But a few days past, the noble temple of American 
liberty stood complete in all its parts — stood in all the 
majesty of its vast proportions, and in the glory of its 
apparent strength and beauty of construction ; not a pillar 
missing nor a joint dissevered. And its votaries were 
gathered about the altar, worshiping, as was their wont, 
with hopeful hearts. Forebodings were felt and predictions 
made of the coming storm, ^nd the destruction of the 
temple. And the storm has come, and still rages; the 
temple still stands, but shorn of its fair proportions and 
marred in its beauty. Pillar after pillar has fallen away. 
And while its proud dome still points to Heaven, it is 
reeling in mid-air like a drunken man ; while its founda- 
tions are shaken as with an earthquake. Yet there are 
worshipers about the shrine — and I am one of them. I 
have been called by warning voices to come out and 
escape the impending danger. I have been wooed by 
entreaties and plied with threats. But neither entreaties 
nor threats, nor hope of reward nor dread of danger shall 
tear me away until I lay hold of the horns of the altar of 
my country, and implore Heaven, in its own good time, to 
still this storm of civil strife ; and, through such human 
agency as may be best, again uprear the fallen pillars to 
their original position, that they may through long ages 
contribute to the strength and beauty of the noblest struc- 
ture yet devised by man." 

These were his abiding sentiments, and while he may not 
have approved of the harsh measures of reconstruction 
forced upon the South by the Federal Congress, he bent all 
his energies to fashion the affairs of Texas in the mould of 
Federal requirement, and in conformity with the Constitu- 
tional amendments. 

He did not think that the great mass of negroes in the 
South were qualified to exercise the right of suffrage, l)ut 
he thought it unwise to exclude them from political priv- 



A. J. HAMILTON. 109 

ileges on account of race or color. Progress, h© said, was 
the great law of mind under a free government, and he did 
not believe that any policy could be enduring or permanent 
in this country which was based upon accidental circum- 
stances and the traditions of prejudice, instead of beino- 
founded upon the eternal principles of truth and justice. 

Governor Hamilton was bold and fearless in the advocacy 
of his principles, and in the execution of his purposes; 
yet he was modest in his deportment, and kind and 
courteous in his bearing. He was a man of pure morals, 
and possessed a kind disposition and charitable heart. In 
private and social life he was iiighly esteemed by his friends 
and associates, and was a man of great personal popularity. 



110 BENCH AND UAU OF TEXAS. 



Lemuel Dale Evans. 



The subject of this sketch was born in the State of Ten- 
nessee in the year 1810, where he studied law and was 
admitted to the bar. He removed to Texas in 1843 and 
settled in Fannin County, which he represented in the 
annexation Convention of 1845, and of which he was a 
prominent member. In 1855 he was elected to represent 
the eastern district of Texas in the United States Congress. 
He was opposed to secession and during the war adhered 
to the cause of the Union : but took an active part in 
endeavorino; to restore the relations of Texas to the Federal 
government upon the basis of conservation and moderation, 
and was a member of the Reconstruction Convention of 
1868. When all the officers chosen by the people were 
removed by military authority, he was appointed in 1870 
chief justice of the Supreme Court, which position he held 
until the expiration of his term in 1873. In 1875 he was 
appointed United States marshal at Galveston and held that 
office until the time of his death, which occurred in the City 
of Washington, on the 1st of July, 1877. 

In the Convention of 1845, when the fifteenth section of 
article seven of the Constitution was under discussion, 
which required the Legislature to provide for the trial of 
cases by arbitration, upon the amendment offered by Mr. 
Howard, "when the parties shall elect that method of 
trial," Mr. Evans said: — 

<' I am opposed to the amendment offered by the gentle- 
man from Bexar, and decidedly in favor of the section as it 
now stands. I have contemplated going further; as I 
know, however, that I should be opposed, I have made up 
my mind to be content with voting for the section as it ♦ 
stands. I shall not assail the motives of lawyers ; but they are 



LEMUEL DALE EVANS. • 111 

wedded to a certain system of settling disputes, by which they 
live, and draw into their pockets a large revenue ; and per- 
haps they can not view the question in its proper light. 
Now I do not want to excite any ridicule against myself, but I 
will state what I candidly believe, that the whole contrivance 
of courts of judicature is a fraud upon the community ; the 
whole system is an invention of the darker ages of the 
world and productive of the greatest injury. I take this 
position, that there is no question of right or wrong which 
a savage is not as competent to decide as the ablest judge 
m the land; no question which affects the rights of property 
or the person, which the untutored savage can not deter- 
mine as well as a Story or a Marshall. And why? Because 
questions of right and wrong depend upon feeling, and not 
upon reason. A man that feels right, no matter how un- 
cultivated his mind may be, is as good a judge of such 
matters as the most learned men that ever sat upon the 
bench. If this were not the case, there could be no human 
responsibility in this world or the world to come. I will 
take another position: that any man who teaches your 
country schools, and understands the common laws of 
syntax, is as well qualilBed to understand the constitu- 
tionality of the law as a Daniel Webster. Why? Because 
any sentence in the English language, whether it be found 
in a law-book or in the Bible, is to be construed according 
to the rules of grammar. I know that lawyers have a way 
of construing the former for themselves. I know that they 
have their particular phrases, and words with peculiar 
meanings, which the common people can not understand. 
And here is the fraud of the whole system. Let a plain 
law be passed. Say the lawyers, no man can write a law 
plain enough for the common people to understand. It is 
referred to a court to get the legal meaning of its terms ; 
the court weighs the terms, as they call it, and settles their 
meaning. How long does it stay so? Until they can gfet 
two men to fall out about the decisions, and then they get 
a court to decide a case already decided. The court then 
enforces the decision, or overrules it. There are now 
twelve hundred overruled cases in the common law. The 



112 BENCH AND BAR OF TEXAS. 

world can not contain the books of legal reports. The 
ablest men in England and the United States, have ascer- 
tained to a mathematical certainty that the fees of lawyers 
and the costs exceed greatly in amount the value of the 
things in controversy. Take all the law-suits now in pro- 
gress in the United States, or the State of Texas, value the 
property in its dollars and cents, and you will find that the 
cost of litigation exceeds the value of the things litigated. 
Ought we not, then, to adopt some other system? And 
there is no other but this of arbitration. You can settle 
all your differences by arbitrators without costs ; for then 
the lawyers do not pocket large fees, and there are no 
officers who live upon litigants. I am friendly to the 
system, because I have seen it in active operation. I have 
lived in countries where there were no law-suits; where 
every difficulty was settled by the friendly interposition of 
neighbors. The peace-maker lived there; the lawyer did 
not. And no difficulty resulted from this system. The 
members of the Baptist Church settle all their differ- 
ences by arbitration ; the Methodists all theirs ; the Quakers 
all theirs by arbitration. If this system prevail, you will 
find men in everv neighborhood, able and Christian men, 
who would be i)roud of the character of arbitrators and 
peace-makers among their fellow-men." 

It would certainly be well for the best interests of 
society, if the principles of morality inculcated by the 
Golden Rule and presumed in this argument, could be estab- 
lished as the law of the land, and practically enfoiced in 
the ordinary transactions of life ; but such a rule has been 
found to be replete with difficulties, and absolutely inap- 
plicable and inadequate to the wants and wishes of society. 
The doctrine of compulsory arbitration was rooted in the 
early laws of Texas, but formed a blank feature of its 
jurisprudence. No suit could be maintained until the 
matter in controversy had been first submitted to the 
arbitration of huenos homhres, and a certificate obtained 
from them that the difficulty could not be settled by arbitra- 
tion. The Mexican laws also required that conciliation 
should first be attempted by the interposition of two 



LEMUEL DALE EVANS. 113 

conciliators^ who had power to select a third, and their 
certificate of the fact was requisite to the commencement 
of an action. But the Anglo-Saxon settlers of Texas 
declined to submit their disputes to such arbitration, and 
resorted to the custom of simply obtaining the certificate 
in order to comply with the law. Not one case in five 
hundred was settled by arbitration. The principle presumes 
a standard which practical morality and voluntary justice 
has never yet attained in any community, and it is feared, 
never will, until the passions and frailties of men are 
subjected to more powerful moral influences and restraints 
than any rule of human conduct has yet been able to devise 
and enforce 



114 BENCH AND BAR OF TEXAS. 



PETER W. GRAY. 



The subject of this memoir was born in Fredricksburg, 
Virginia, in the year 1819. His father, William Fairfax 
Gray, removed his family to Texas while his son Peter was 
but a mere youth, and served as clerk of the House of 
Representatives of the Republic in 1837. He was subse- 
quently district attorney, and held that office at the time of 
his death in Houston, in 1841. 

Peter W. Gray was chiefly reared and educated in 
Houston, studied law in the office of his father, and suc- 
ceeded him as district attorney. In 1846 he was a member 
of the first Legislature of the State, and his services in that 
body were distinguished for the highest efficiency. He was 
the chief author of the practice act, which eliminated and 
excerpted from the mutually repugnant systems of the civil 
and common law the clear and well defined method of 
reaching the merits of a case, which led to the present 
excellent systems of pleading and practice in the Texas 
courts. 

He was soon afterwards appointed judge of the Houston 
district, and so learned, impartial and just was the manner 
in which he performed his judicial duties, that he was 
chai*acterized by Chief Justice Roberts as "the very best 
district judge that ever sat upon the Texas bench." 

As a lawyer Judge Gray attained early in life a high 
standing at the bar, and was distinguished for his astuteness 
and vigor, and for his solid professional accomplishments. 
His knowledge of the law was profound, and he was pro- 
ficient and practical in the application of principles. His 
mind was highly analytical, and he was expert in eliminating 
truth from the speciousness of circumstances. Subsidiary 
to this, his love of justice and abhorrence of wrong 



PETER W. GRAY. 115 

prompted his best exertions in tiie establishment of legal 
right and equitable principle. He was ardent in his devo- 
tion to duty and conscientious in his professional dealings, 
which engaged tlie confidence of his clients and the esteem 
of the people. He was thoroughly familiar with Texas 
jurisprudence, and his knowledge of the statute law and of 
the import and reason of the decisions of the Supreme 
Court, made him a safe counselor and a successful lawyer. 

These qualities, enhanced by his habits of self-reliance 
and independence of thought, responded to the require- 
ments of an eminent judge and attained for him the dis- 
tinction upon the bench so generously canonized by the 
eulogy of the chief justice. 

During the war. Judge Gray represented the Houston 
district in the Confederate Congress, and was a staunch 
supporter of every measure for strengthening the arms and 
promoting the interest of the Confederacy. When hostili- 
ties ceased he returned to Houston and resumed his prac- 
tice, endeavoring by his example and counsel to re-establish 
the order of peaceful pursiiits and ameliorate the condition 
of his people. 

In February, 1874, he was appointed an associate justice 
of the Supreme Court, to fill a vacancy occasioned by the 
resignation of Judge W. P. Ballinger, who had been but 
recently promoted to the bench, and, though in feeble and 
declining health, he responded to the call for his services 
and entered upon the discharge of his judicial duties. But 
soon finding that he was physically unable to perform the 
functions of his high office, and being unwilling to leave the' 
court with an even number, which might embarrass the 
course of justice, while he sought to repair his health in 
retirement, he resigned his seat on the 18th of April, hav- 
ing held the position but two months, and, retiring to his 
home in Houston, died on the 3d of October, 1874. 



116 BENCH AND BAR OF TEXAS. 



MICAJAH HUBBARD BONNER. 



This remarkable man and eminent judge was the son of 
Rev. Wm. N. Bonner, a Methodist minister, and was born 
in Greenville, Butler County, Alabama, on the 25th of Jan- 
uary, 1828 ; but in 1836 removed with his father's family to 
Holmes County, Mississippi. His early education was ob- 
tained from the common schools of the country and completed 
by an irregular course at La Grange College, in Kentucky; 
but he possessed an aspiration for knowledge which no cir- 
cumstance of his youth could suppress, and an ambition to 
achieve a name and a place among men undaunted by any 
prospect which the future could present to his view. Hav- 
ing prepared himself for the practice of law, he was admit- 
ted to the bar at Lexington, Mississippi, in 1848, and the 
next year, being attracted by the allurements which the 
new fields of the West offered to enterprise and genius, he 
emigrated to Texas and began the practice of his profession 
at Marshall, in an office built with his own hands ; but soon 
afterwards removed to Eusk, in Cherokee Countjs and 
formed a copartnership there with the distinguished J. 
Pinckney Henderson, who, in view of his great talents and 
success, was justly considered as the head of the Texas bar. 
This association afforded to Mr. Bonner at once the field to 
which his energy and genius were adapted and which his 
ambition had coveted, and he now entered upon that brill- 
iant and successful career at the bar which finally raised 
him to the highest i^osition upon the bench. This partner- 
ship continued until General Henderson was elected to 
Congress, after which Mr. Bonner practiced alone for some 
time and then associated with his brother, F. W. Bonner; 
but so eminent and widespread was his reputation for legal 
learnins: and ability, and his fine social qualities and per- 




-: DudeusUi'o ' 




^: 




^wnvvn:. 



MICAJAH HUBBARD BONNER. 117 

sontil integrity had rendered him so popular, that, in 1873, 
the lawyers of the Seventh District, of which he was not a 
resident, but which was already within the scope of his 
practice, unanimously petitioned for his appointment to the 
bench of that district. This was effected, and he then re- 
moved to Tyler, which was his place of residence during 
the remainder of his life. 

Upon the bench Judge Bonner exercised in the highest 
degree the ability and qualities which had raised him to that 
position, and in 1874 Governor Coke reappointed him to 
the same judgeship, which he held until the adoption of the 
Constitution in 1876, which provided for an elective judi- 
ciary, and was then elected to the same office by the people. 
In 1878 he was appointed by Governor Hubbard an asso- 
ciate justice of the Supreme Court, to fill a vacancy 
occasioned by the resignation of Chief Justice Moore, and 
was chosen to this position by the people at the ensuing 
election. At the expiration of his term he declined to bo 
re-elected and returned to the bar, preferring the duties and 
more remunerative emoluments of a large practice. 

Judge Bonner possessed a vigor, perseverance, and in- 
quisitiveness of mind which permitted nothing to pass 
from under his observation without his thorough compre- 
hension of its character ; and to these trained habits of 
sensation and perception was added a well regulated judg- 
ment. While these qualities will assert their superiority in 
whatever sphere they may be exercised, they are, of all 
others, the most important qualifications for success at 
the bar. 

As a lawyer. Judge Bonner was profound and exact. He 
was methodical and laborious in the preparation of his 
cases, and was always well armed with precedent and 
authority. He was cautious and deliberate in assuming his 
ground and surveyed with care every inch of the field 
before he rushed to the attack or planted his lines of de- 
fense; hence there was a fixed precision — an engageil cer- 
tainty attending the positions he took, which no skill of 
sophistry could shake. His judgment was intuitive and 
his logical powers spontaneous. He rarely indulged in the 



118 BENCH AND BAR OF TEXAS. 

lofty strains of rhetoric, and never in impassioned challenges 
of applause. But while his oratory was usually devoid of 
ornamentation, it was forcible, logical, and laden with 
argument. He readily perceived the main points of a 
question and addressed himself to the gist of the contro- 
versy — a nile which commends itself both by its utility 
and the sound sense b}' which it is dictated, and which, if 
more universally observed, would greatly enhance the ex- 
pedition of the courts and the attainment of justice, while 
it would often lift a heavy burden from the patience of both 
judge and jury. 

Another feature, which added greatly to Judge Bonner's 
success as a lawyer, was his uniform placidity and good 
nature. While stern and immovable in his convictions and 
in the positions he had assumed, his professional ethics 
were marked by a cultured suavity which preserved the 
most cordial relations between him and the other members 
of the bar, and, as has been said of another, he wielded 
the club of Hercules wreathed with roses. 

In addition to his large and well stratified stores of legal 
knowledge, the vigorous and active mind of Judge Bonner 
had gathered resources from every branch of science. 
While he delighted to delve in the rugged field of his pro- 
fession, his sentimental nature and refined taste collected 
also the gems of romance and the lioAvers of aesthetics ; yet 
he never neglected the realities of life for the mere visions 
of fancy. His attention was attracted but not beguiled by 
that literary curiosity which often allures a man of genius 
from his chosen pursuit, and engages his powers in the 
wasting diversions of inutility. Capable of great applica- 
tion and full of the ardor of a versatile genius, he devoted 
himself with severe restraint and indefatigable zeal to the 
attainment of all useful and refining knowledge. 

But it was upon the bench that he wore his brightest 
laurels. It was here that his fearless independence of 
character in thought and action, his uncompromising regard 
for truth and justice, and his profound knowledge of law, 
were most strikingly exemplified. He was eminently gifted 
with the power of methodical and accurate dispatch, and, 



MICAJAH HUBBARD BONNER. 119 

as a district judge, the business of his court was conducted 
with the current smoothness and uniformity of a well regu- 
lated machine. If he hesitated, it vvas but to assure him- 
self of that which was right and lawful, and then his 
firmness of character and conscientious conviction per- 
mitted no unnecessary obstacles to be thrown in the path 
of expeditiop. His court was a sanctum of dignity and 
decorum. But whilst he maintained with scrupulous and 
exacting regard the sanctity which should always surround 
the altars of justice, he was not austere ; but his official de- 
meanor, like his social intercourse, was clothed with the 
graces of culture and Christianity. 

As a judge of the Supreme Court, his diligence and ca- 
pacity for patient and laborious research left no field unex- 
plored in his search for principles and precedents which 
nestle in the dictates of truth and equity, while his learning, 
his powers of analogy and parity of reason directed their 
application with unerring fingers and enabled him to rescue 
justice from the most specious claims of wrong. The lan- 
guage of his decisions is that of a thorough legal scholar, 
and sparkles with the imprint of a clear mind, an upright 
heart and a pure conscience. It would be gratuitous ser- 
vice to the profession to attempt to cite the important 
points in his opinions. With these the gentlemen of the 
Texas bar are already familiar. They settle many im- 
portant questions and establish some of the principle 
features of Texas jurisprudence. 

In private life Judge Bonner was amiable and refined. 
Like Lord Chesterfield, he considered politeness the lubri- 
cator of society, and to smooth the pathways of others he 
recognized as the great duty of man. This sentiment, 
quickened by his nature, and intensified by the love which 
he bore to his profession, enlisted his especial sympathies 
and services in behalf of those who sought its pathway to 
success and prominence, and the young lawyer found in 
him a friend who delighted in efforts to promote him. He 
was a fond husband, a doting father, and a devoted friend, 
and the golden chain was linked with the jewels of domestic 
felicity. He was married at Marshall, in 1849, to Miss 



120 BENCH AND BAR OF TEXAS. 

Elizabeth P. Taylor, daughter of Dr. Job Taylor, a lady in 
every respect worthy of the character of her husband, and 
who, no doubt, afforded him that encouragement which 
only the smiles of loveliness can inspire. 

On his retirement from the Supreme bench in 1882, 
Judge Bonner resumed his practice at Tyler, and at the 
request of many of his professional friends, and being 
instigated by a liberal encouragement, he began the prep- 
aiation of a work to contain a compendium of the rulings 
of the Supreme Court of Texas from the earliest period of 
its organization ; but his labor was prevented by declining 
health, and he died on the 28th of November, 1883. 

Judge Bonner was of a decidedly religious turn of mind, 
and early espoused the cause of Christianity. His life was 
modeled by the training which he received from pious pa- 
rents, and he attributed with reverential pride his early and 
lasting victory over temptation especially to the hallowed 
influence and teachings of his mother. He was from his 
youth a strict member of the Methodist Episcopal Church, 
and died in the communion of that sect. 

The life of Judge Bonner was a noble commentary upon 
the value of amiability and gentlemanly traits of character, 
and impressed the lesson that a mild temper, a uniform de- 
corum and moderation were virtues compatible with the 
greatest attainable success at the bar and with the preserv- 
ation of the highest dignity upon the bench, as well as in 
the social circle and the ordinaryintercour.se with men ; but 
although he was fond of society, he never indulged in either 
the social glass or the social game, and, while guarding with 
a drawn sword every avenue of moral temptation, he per- 
mitted no approach to his judicial favor. The following 
letter from a railroad official upon his elevation to the Su- 
preme bench shows that he extended this sentiment even to 
that which may now be an innocent custom; — 

"Palestine, Tex., Dec. 28, 1878. 
Hon. H. M. Bonner, Tyler, Tex. — 

jNIy Dear Sir: — Returning from Galveston, I have at 
hand yours of the 24th inst., with inclosure of pass returned. 
We sent the pass to you for the reason that it is customary 



MICAJAH HUBBARD BOXNEK. 121 

for railroad corporations to extend such courtesies to the 
highest officers of the State government. We highly appre- 
ciate your sentiments upon the subject, and feel that in your 
elevation to the high office you fill, private citizens and cor- 
porations have alike common cause for satisfaction. * * * 

Very truly yours, 
[Signed] Ira H. Evans. 

While it was Judge Bonner's custom to treat in this way 
all such proffers from corporations and individuals, his 
charities were large and oj)en-handed and untainted by any 
element of ostentation. They sprang from the dictates of 
a pure heart and a love of virtue, and afforded as much 
pleasure to him who gave as to him who received them. A 
bright Mason, he practiced the hallowed precepts of faith, 
hope and charity, which the ancient order so beautifully and 
forcibly inculcates ; an exemplary Christian, he made the 
teachings of Scripture his. rule of conduct ; a learned 
judge, his knowledge was subsidiary to his moral fortitude. 
His addresses to the grand jury were models of legal exposi- 
tion and moral commentary. They were elevating U) the 
bar, admonishing to the people, and an honor to jurdicature. 

IMPORTANT SUGGESTIONS OF JUDGE BONNER IN REGARD TO 
REFORMS IN THE JUDICIAL SYSTEM. 

A PROPOSED AMENDMENT TO OUR STATUTE OF TRESPASS TO TRY TITLE. 

[Suggestion Number One.] 

One of the greatest problems now engrossing public 
attention, is to devise a more economical system for the 
administration of our State government ; not a parsimonious, 
"penny-wise, pound-foolish" system, but one which will 
accomplish the desired end on a sound and proper basis. 
This and a few succeeding papers are most respectfully 
intended to invite reflection and suggestions on the part of 
the members of the profession, to whom such questions more 
particularly pertain, to some needed reforms in our judicial 
department, which, it is believed, will greatly lessen the 
delay and expense of our courts. This reflection and in- 



122 BENCH AND BAR OF TEXAS. 

vestigation are the more important now, in view of the 
approaching session of our Legislature, at which it is 
proposed to revise our whole system of laws, both civil 
and criminal. This work should be done, if possible, after 
such careful thought aud deliberation, in consideration of 
the mischief bo be remedied and the object to be attained, 
as will insure a system which will avoid that great evil of 
modern legislation — frequent changes of existing laws, by 
which we fly by bad exi)erience to greater ills, and which 
has given rise to the maxim, that the world is governed 
too much. 

It is, however, by no means intended to encroach upon 
the work of the able and learned commission appointed to 
revise our laws, nor to indicate anything like a general sj^s- 
tem, but simply, by a few illustrations of supposed defects, 
to call attention to the necessity and importance of the 
labor which has been intrusted to them, and thus give 
assurance of our earnest co-operation in the great work of 
reform. Neither infallibility nor entire originality is 
claimed for the suggestions which may be made, but, as 
before stated, the object desired is to awaken thought and 
investigation. 

The first question to which attention is *invited is the 
importance of an amendment to our statute of trespass to 
try title. With the introduction of the common law there 
was an express provision that thereby the common-law 
system of pleading was not adopted. Our act of trespass 
to try title, by which all the fictitious proceedings in the old 
action of ejectment were abolished, and by which the 
controversy that had for so long been protracted 
between those persistent litigants, John Doe and Rich- 
ard Roe, was finally terminated, was a much needed 
reform upon the old common law. But so much of the 
act as provided that the defendant shall not be required to 
put in any other plea than that of " not guilty " is contrary 
to the general policy, if not thereby impliedly repealed, 
inaugurated by our subsequent legislation and judicial 
construction, which seek to make our system one of special 
pleading. As stated by Mr. Justice Wheeler, in Mimms v. 



MICAJAII HUBBARD BONNER. 123 

Mitchell, in the very first volume of our reports: "But 
with us, neither the distinctions of the fonn^ of actions 
nor the general issues exist ; but our pleadings really are, 
or intended to be, what the English pleadings are defined 
to be — the statement in a legal and logical manner of the 
facts which constitute the plaintiff's cause of action, or the 
defendant's ground of defense, or the written statement of 
those facts intended to be relied on as the support of the 
party in evidence." 

This statement is necessary to the ends of Justice, so 
that the parties maybe advised of the true issues, and come 
prepared to meet them with the testimony. If necessary 
in ordinary cases, how much more so in that class of litiga- 
tion which involves the title and possession of the lands 
and homesteads of the country. But, under the plea of 
"not guilty," the defendant can attack his assailant, as 
from behind a masked battery, without previous warning. 
In this way important rights are sometimes lost under issues 
raised for the first time on the introduction of testimony, 
which, had they been presented in the pleadings, could 
have been successfully met and resisted. Like objection 
arises to the pleadings of the plaintiff, when, as is usually 
the case, it is but a general statement of the legal owner- 
ship to the land in controversy. 

It is submitted that the statute should be so amended as 
to require both parties to deraigu in their pleadings, at 
at least from a common source in proper cases, their 
respective titles. This would be consistent with the true 
and original purpose of all good pleading, and which our 
system, with perhaps this single exception, was designed 
to accomplish; and would frequently enable the court to 
decide on demurrer the legal effect and superiority of the 
respective chains of title, which now has to be done in the 
charge to the jury after all the delay and expense of a trial 
upon the facts. This change, it is believed, in its practical 
effect, would not be pleading the evidence in the case, more 
than is now required in setting out the particularity of the 
claim declared upon in a suit of debt. 



124 BENCH AND BAR OF TEXAS. 

THE NECESSITY OF AN APPEARANCE TERM TO DETERMINE THE ISSUES 

OF LAW. 

[Suggestion Number Two.] . 

That government is the best which affords to its citizens 
the greatest protection to the rights of person and property, 
and the most economical and speedy legal remedy for the 
violation of those rights. A nation's principal wealth con- 
sists in that of the individuals who, in the aggregate, com- 
pose the nation, and the great source of this wealth is the 
industrial resources of the country, that which produces 
and which can be utilized for botn public and individual 
gain. In calculating the expenses of our courts we should 
consider, not only the positive loss in the actual amount of 
indebtedness thereby created, and which has to be paid to 
jurors, witnesses, etc., but also the negative loss to this 
producing interest by the withdrawal of labor from thesev- 
eraJ industrial pursuits. 

A pyoper consideration of the subject in all its relations, 
and particularly in the loss to the agricultural portion of the 
community, from which our jurors and witnesses princi- 
pally come, will show that the indirect expenses of our 
courts perhaps exceed the direct expenses. A penny un- 
necessarily spent, when it should be made, is two pence 
lost. 

To ascertain, then, that system which will best enable us 
to properly carry on the courts with the least attendance of 
jurors and witnesses deserves the profound consideration of 
our wisest statesmen. It is confidently believed that great 
reforms can be made, by which the expenses of our courts 
can be reduced at least one-half what they now are under our 
present system. One of these, it is submitted, is to have an 
appearance term of our District Courts for the purpose of 
determining the issues of law, at which neither jurors nor 
witnesses are required to be in attendance, and no judg- 
ments to be rendered except those taken by default and 
consent. Rule 24, for the District Courts, recently adopted 
by the Supreme Court, went as far in this direction as ex- 



MICAJAH HUBBARD BONNER. 125 

isting statutes permitted, and has already been attended 
with good results, though it falls far short of much that 
could be accomplished under proper legislation. It is not 
intended that there shall be a separate appearance term, 
but that the first succeeding court, after citation served, 
shall be the appearance term for all the cases returnable 
thereat. Practically, it will cause no delay to litigants, for 
under our present practice a contested case is very rarely 
tried at the term to which the same is brought. 

If the judge presiding needs the assistance of learned 
counsel and a reference to authority, at any stage in the 
progress of a trial, it is when he has under consideration 
the issues of law upon demurrer. In the courts of last re- 
sort these very questions are determined upon full argument, 
and printed briefs from eminent counsel, with access to ex- 
tensive and selected libraries, after full time for research 
and deliberation, and upon consultation with learned and 
experiencd brother judges. But in the nisi prius courts, 
they have to be decided by a single judge, and at compara- 
tively great disadvantage under the most favorable circum- 
stances. The issues are not narrowed down and presented 
in brief, pointed proportions, as in the courts of last resort, 
but are first presented in the pleadings, generally in a vol- 
uminous, crude mass, from which the true propositions of law 
which underlie the case have to be evolved. This has to be done 
in the midst of the hurry and confusion of the court, per- 
haps not upon full or satisfactory argument, often in coun- 
ties where full sets of our own State Reports even are not 
accessible, and when impatient jurors, witnesses, litigants, 
and sometimes impatient lawyers, when not engaged in the 
particular case on trial, are anxiously in attendance. If the 
judge presiding, in the effort to discharge his sworn duty, 
listens patiently to argument, and endeavors, by a proper 
determination of the legal questions in the first instance, to 
avoid an error which, if fatal here, will be fatal to all sub- 
sequent proceedings, he is called a " slow coach," and de- 
nounced for permitting the lawyers to indulge in argument, 
and is adjudged to be unqualified for his position. If, how- 
i_'v^r, instead of fearless!}' endeavoring to discharge his duty 



126 BENCH AND BAR OF TEXAS. 

he seeks popularity by a false show of profound learning, 
which enables him to decide, erroneously, difficult questions 
upon the moment and without argument, he is in fact not 
only unworthy of his position but makes waste by making 
haste, in having the cases remanded to again undergo all the 
delay, expense and uncertainty of another trial. Perhaps 
unreflecting parties would not so frequently denounce the 
court and lawyers for patient investigation and seemingly 
unnecessary argument were their own cases on trial. Would 
it not seem arbitrary indeed to them, in the trial of a case 
in which their lives or homesteads were involved, should the 
court, in the effort to make the very equivocal reputation of 
being a fast judge, order their attorneys to set down because 
the time of the court was too precious to do one of the 
principal things for which the tribunal was constituted — to 
hear argument, and thus summarily decide, perhaps erron- 
eously against them? From this standpoint the true mis- 
sion of the court and lawyers would be viewed in entirely 
a different light. As said by that great equity lawyer, Lord 
Eldon, in Ex parte Pease, 1 Rose, 237, '* I know a great deal 
of time is consumed in hearing argument, but a great deal of 
justice is the result." 

A remedy for the seeming delay in our courts and which, 
perhaps, in too many cases, is real, and which would save 
the now necessary expense of attendant jurors and wit- 
nesses, and prevent the hurry and consequent liability to 
err in the determination of the issues of law, and by which 
a happy medium between unnecessary delay and undue haste 
can be attained, is to have the appearance term above 
recommended. This docket will be called after all the cases 
in which jurors and witnesses are required have been de- 
cided, and these parties have returned home, and when the 
judge, with none necessarily in attendance except the law- 
yers, can, after full argument, and when the desired 
amendments have been filed, finally settle the true issues of 
law in the case. This being done on more mature delibera- 
tion, there will be less liability to err and to have the judg- 
ment reversed and the case remanded for another trial. 
In this way many issues before supposed to be material, 



MICAJAH HUBBARD BONNER. 127 

and to sustain which a cloud of witnesses, under our present 
system, would be in attendance, will, at the first term, be 
eliminated from the record, and occasionally a case will be 
dismissed entirely upon general demurrer, and thus save 
the attendance of both witnesses and jurors. If, at the 
same term, the court be required to ascertain the jury cases, 
and set the call of the jury trial docket for a day certain at 
the next term, then the parties can appear with such wit- 
nesses only as are necessary to sustain the issues remaining 
in the case, and the only preliminary question to the trial of 
all cases upon the issues of fact, will be simply that of con- 
tinuance; no further amendments being permitted, except 
in proper cases under affidavit, in analogy to the plea of 
puis darien continuance at common law. 

M. H. Bonner. 

DEPOSITIONS OP ALL WITNESSES IN CIVIL CASES. 

[Suggestion Number Three.] 

Having now decided the issues of law, and having to this 
point saved the expense of the attendance of both witnesses 
and jurors, while delayed in that most important part of 
the trial, and the expense of the latter in all cases unless 
demanded, and having set down, for a particular day in the 
term, the call of the jury trial docket, so that jurors need 
not attend before that time, we will next inquire what fur- 
ther expense can be saved in the attendance of witnesses. 
Before doing so, however, it is proper to pay a deserved 
tribute to that clause in the Constitution of 1876, which 
provided that no jury should be had in any civil case unless 
demanded by one of the parties. Under our former laws 
and practice, the reverse of this was the rule, and a jury 
was necessary in any contested case, unless expressly 
waived by both parties, thus requiring jurors to be in at- 
tendance throughout the whole term. In the practical 
operation of the new law in one judicial district, of which 
I can speak advisedly, and I presume it is the same in 
others, juries have not been demanded in more than one- 
third of the trial cases ; and in one instance a jury was not 



128 BENCH AND BAR OF TEXAS. 

demanded durino^ the entire term. The sinirle item of the 
five dollar jury fee, which formerly would have been taxed 
in the bill of costs, in the a^sfreo-ate will amount to a larire 
sum thus saved to litisxants. This growing tendency to dis- 
pense with juries, with the reduction of the gVand jury to 
twelve members, has very greatly lessened the expense of 
this service, and with an appearance term, as before recom- 
mended, it is be;lieved that this part of the machinery of 
the courts, which had grown to be such a burden upon the 
people, both in taxation and unnecessary attendance, will 
be carried on at comparatively nominal expense. A much 
greater saving can be realized by taking the depositions of 
all witnesses, with perhaps a few exceptions, under proper 
rules and regulations in civil cases. The most burdensome 
and expensive part of the whole court, to both litigants and 
individual members of the community in the great majority 
of the cases, is occasioned by the attendance of the wit- 
nesses. This is particularly so to the witnesses themselves 
in cases where the parties litigate in forma j)ciU2')eris. 

Under existing laws the deposition of witnesses gener- 
ally, resident within the county, to a single point even, can 
not be taken unless by consent of both parties. The s^'s- 
tem by deposition has long been the practice in courts of 
chancery, and thereby great delay and costs have been 
avoided, and our procedure is one of mixed law and chan- 
cery. Even under our present system the depositions of 
females, of aged, sick and afflicted persons, and of those 
who are non-residents of the State or county, can be taken, 
and have usual Ij'- proven satisfactory, so far as my experi- 
ence and observation have extended. As an illustration, if 
proper and practicable to take the deposition of a witness 
who resides Avithout the county, why is it not equally proper 
and practicable to take the deposition of a witness who re- 
sides within the county, perhaps near the county line, and 
within a short distance of his neighbor whose deposition is 
on file? Beside the very great expense, direct and indirect, 
which now burdens the country, every court, by the mileage 
and per diem fees to witnesses, and by the withdrawal of 
their labor and su[)ervision from their several industrial 



MICAJAH HUBBARD BONNER. 129 

avocations, there would be other very marked advantages 
resulting from the proposed change. Cases would be 
more speedily brought to trial, and that great reproach to 
our present judicial procedure, frequent continuance for 
want of the testimony of absent witnesses, would be re- 
moved, as, by the proper use of diligence, their depositions, 
in most instances, would already be on file; the testimony 
of the witnesses, would be perpetuated in case of death or 
other casualty or defective menioiy ; and that most vexa- 
tious source of annoyance to both court and attorneys, a 
wrangle over statements of fact, would be obviated. 

There is this, and perhaps other objections to the system, 
that in some instances it would be more satisfactory that the 
the witness should be personally on the stand and subjected 
to examination in presence of the court and jury. This 
could be obviated to some extent by requiring the witnesses 
to attend at some suitable place, — as a general rule at the 
court-house, — for the purpose of having the deposition 
taken, and giving to both parties, in person or by attorney, 
the privilege of being present, and propounding, either in 
writing or orally, any pertinent questions they may desire. 
In some cases, on affidavit of the necessity therefor, the 
percjonal attendance of the witnesses maybe enforced under 
such rules and regulations as may be deemed proper. The 
tendency of modern legislation and of the decision of our 
courts of the very highest authority, is to relax the old rules 
of evidence. No system which we can devise will be per- 
fect, but it is believed that the advantages of the plan 
suggested, of taking the depositions of all witnesses gen- 
erally in civil cases, under proper safeguards, even with the 
objections to it, will so far outweigh the disadvantages of 
the old system as to recommend it to the very favorable 
consideration of the profeesion. 

MORE STRINGENT TAWS AND PRACTICE DEMANDED ON THE SUBJECT OF 

CONTINUANCES. 

[Suggestion Number Four.] 

Having shown how that stage in the progress of the trial 
in civil cases at which the parties will be called on to an- 
9 



130 BENCH AND BAR OF TEXAS. 

nounce themselves ready on the issues of fact or apply for a 
continuance can be reached at comparatively little, if any, 
expense of either jurors or witnesses, and having shown 
that applications for continuances on account of the want of 
testimony, if due diligence is used to take depositions, will 
be of rare occurrence, we will next see how delay and ex- 
pense can be saved in criminal cases. 

If, as required in regard to the issues of law at the 
appearance term for civil cases, the defendants in all criminal 
cases be required to file at the first court after arrest all 
exceptions to indictments and motions to quash, or else 
they shall be deemed waived, and the court be required to 
act upon them at the same term, or as soon thereafter as 
the other business will permit, then one very prolific 
source of delay and expense will be removed. How often 
has it occurred, within the observation of every experienced 
judge and attorney of long practice, that, after a case had 
been called and continued for a number of times, fre- 
quently until the offense was barred by limitation, after 
the expenses of jail fees, attendance of jurors and witnesses 
had accrued, after all the witnesses had at last been found 
and were in attendance, many of them possibly from distant 
counties, and the jury ready to be impaneled, exceptions 
to the indictment have for the first time been filed, presented 
and sustained, and the defendant discharged. How easily 
could all this have been obviated, and the defendant brought 
to justice, by requiring these to have been presented and 
decided at the first term. 

This devolves upon the defendimt, as the State can not 
force the issues of law until they are first presented by the 
defendant. 

But, admitting the indictment to be good, the facility 
with which continuances can now be obtained, is a sad com- 
mentary upon our laws and practice. 

This is attributable, doubtless, in some instances, to the 
leniency of the judge presiding, but in most cases, as the 
requirements of the law are complied with, he is compelled 
to grant the continuance ; else, after the delay and expense 
of a trial, the case will be reversed and remanded. Thus, 



MICAJAH HUBBARD BONNER. 131 

frequently important cases are worn out and virtually lost 
before they are brought to trial. Continuance after con- 
tinuance is had ; witnesses die or remove from the county 
or State; their interest becomes adverse, or, from natural 
or mercenary causes, important facts fade from the memory 
or can not be obtained. This, as said by Mr. Justice 
Wheeler in another connection, is of so frequent occurrence 
" as to seem to justify the reproach of the law, that it does 
not afford any adequate protection for the sacred rights of 
personal security," and, we might add, of property. 

But to the individual loss of the immediate parties liti- 
gant should be added the expenses of the witnesses, jurors, 
jail fees, and, in most cases on the criminal docket, and in 
many cases on the civil docket, the loss in fees and expenses 
to the officers of the court. 

In all capital cases we are by law required to have special 
venires of from thirty-six to sixty men. As these are not en- 
titled to pay, except the particular twelve who are finally 
impaneled, and, as in State cases there is seldom any cost 
paid to witnesses, and frequently none to the officers of the 
court, these frequent continuances, with their consequent 
evils, have become burdens too grievous to be borne. As 
grievous burdens were imposed in olden times, by the 
Scribes, who were then called lawyers, but who, I am 
proud to say, did not represent that respectable and influ- 
ential class so known in latter times, let it be the 
important work of those who are now called lawyers to 
remove them. 

Many witnesses attend from day to day and from term to 
term from respect to the process of the court and the pow- 
ers that be, while many others disregard and seek to evade 
this process, and thus cause the necessity of frequent 
continuances. I call to mind one instannce, of an aged, 
infirm witness, who was under attachment in an important 
capital case simply because he resided without the county. 
In obedience to that process, he traveled a distance of 
two hundred and fifty miles, through the inclement snows 
of January, 1877, when the case was continued for the 
testimony of another witness who resided within the county 



132 BENCH AND BAR OF TEXAS. 

and but a few miles distant, who failed to attend because 
he was simply under the process of subpoena. An attach- 
ment was ordered for the absent witness, which, under our 
statute, could not previously issue, because he resided 
within the county. This compelled his attendance at the 
next term, when the case was again continued for a witness 
who was under subpoena only, and thus was the case con- 
tinued by first one and then the other party. 

Again, under the terms of our statute, as construed by 
the Supreme Court in Dinkeiis v. The State, 42 Texas, 252, 
a defendant who is committed to jail to answer at the next 
term of the District Court a grave charge, perhaps without 
bail, after a full and patient investigation for days before 
an examining court, although fully aware of the specific 
charse n^ainst him, and the names and residence of all the 
witnesses, real or feigned, in his behalf, is not required or 
even permitted to use any diligence to prepare for trial 
until the bill of indictment has actually been found and re- 
turned into open court ; and, under the statute, as con- 
strued in Shackelford v. The State, 43 Texas, 140, the judge 
presiding has no discretion, over the objections of the de- 
fendant, to postpone the trial for a reasonable time, until 
the attendance of the witnesses can be obtained. The 
same restrictions and prohibited use of diligence apply also 
to the State. Hence, instead of encouraging trials and the 
administration of speedy justice, our present laws and prac- 
tice virtually forbid it, as a continuance in a State case at 
the first term is obtained almost as a matter of right. 

It is respectfully submitted, that there is, on principle, 
no good reason why the first application for a continuance, 
in both State and civil cases, should not contain all the 
substantial requisites of the second or other subsequent 
application; that the law should be so amended as to per- 
mit and require both parties, where the defendant has been 
bound over to answer a charge at the succeeding term of 
the District Court, to issue with due diligence, before in- 
dictment found, the necessary process to compel the atten- 
dance of witnesses ; that witnesses, in all felony cases at 
least, should, in the first instance, be placed under bond, as 



MICAJAH HUBBARD BONNER. 133 

a general rule, with security, to compel their attendance, 
and, to this end, authority should be given to the commit- 
ting magistrate to thus force the attendance of all the material 
State -witnesses before the proper grand jury, and of all 
the material witnesses for the State and defendant, before 
the District Court for the trial of the case. This would 
compel the prompt attendance of witnesses, prevent evasion 
of process by absconding from the State or county and 
thus enable the courts to enforce trials, and a speedy ad- 
ministration of justice. This would also save the expense 
of jail fees, of the bailiffs and other officers in summoning 
these very witnesses, and the delay and expense of the 
grand jury while awaiting their appearance. 

In this connection, and as saving much expense to the 
counties, it is further suggested that our laws should be so 
amended as to compel defendants who apjieal, many per- 
haps for delay, to make their cases returnable to the then 
pending or next approaching term of the Court of Appeals. 
This is in harmony with one of the main objects of the 
organization of this important court, and would not only 
save great expense to the country, but in many cases should 
be done in justice to the defendants themselves, where the 
judgments have been affirmed in cases where the punish- 
ment assessed was continement in the penitentiary. In 
addition to this the law should also be amended so as to 
permit speedy sentence to be passed after affirmance of 
judgment. 

In a late circuit, in one of the judicial districts of the 
State, five defendants were awaiting the action of the court, 
in cases where the judgments had been affirmed for several 
mouths, before sentences under existing laws could be 
finally passed ; and, doubtless, there were many similar 
cases in other districts. 

THE IMPORTANCE OF STATUTORY LEGAL FORMS. 

[Suggestion Number Five.] 

Every intricate science has its formulas ; every difficult art 
its designs. The law, in its theory, is an intricate science ; 
in its practice, a difficult art. 



134 BENCH AND BAR OF TEXAS. 

The old masters of the profession have handed down to 
us the result of their experience and judicial construction 
in certain forms of pleading, civil and criminal, and other 
practical forms, which have stood the test of ages. 

Many of these, in some of their requisites, have out- 
lived the reasons which gave them existence, and, to this 
extent, have become obsolete. In many respects, however, 
they are still valuable. As expressed in the new rules, in 
regard to pleadings, while these forms are not authori- 
tatively requisite, they may be generally followed as safe 
guides. A' 'ere all our officials good draftsmen, and had 
they the leisure to prepare the requisite instruments as the 
particular emergency may arise, there would not exist so 
great necessity for carefully prepared forms. But even 
our courts of last resort sometimes differ as to the legal 
construction of certain instruments prepared by our best 
lawyers, and it could not be expected but that our officers, 
frequently unskilled by previous education or experience, 
should in many instances fail in their experiments. 

The want of proper forms has occasioned great delay 
and loss, and a great resort, in almost numberless appeals, 
to the proper courts on questions of construction. How 
many indictments, after the expense of procuring the wit- 
nesses before the grand jury, and of the grand jury itself, 
and the further expense of the attendant jurors and wit- 
nesses upon the court, perhaps for several terms, jail and 
other incidental fees, have linally been quashed for want of 
a simple, comprehensive, statutory form. 

Such legislation works well in other States where tried, 
and in some few instances in which we have statutory forms 
the most satisfactory results have followed. Very many 
lawsuits, doubtless, have been prevented by the prescribed 
form for taking the separate acknowledgment of a married 
woman. It is seldom the case that a motion to quash an 
attachment is based upon a want of formality in the bond. 
Our statute, which prescribes the form of recognizance in 
appeals in State cases, has saved much confusion and 
delay. 

Thousands and thousands of dollars are lost annually by 



MICAJAH HUBBARD BONNER. 135 

reason of defective bail bonds. These important instru- 
ments, so essential in the administration of the criminal 
law, and which require the skill of one learned in the law, 
are generally prepared by inexperienced or incompetent 
officers, who do not know the legal effect of the terms used, 
or the necessity of others entirely omitted. Even recog- 
nizance, judgments iiisi and final, taken in the very presence 
of the court, are often, from want of proper care and 
attention, so defective as to be set aside on motion or 
appeal. In this way not only is the amount of the penalty 
lost to the State, after all the expense and delay incurred to 
that stage in the prosecution, but in many cases the offender 
escapes wholly unwhipped of justice. 

Frequently judgments by default can not be taken, where 
there is no appearance and contest even by the defendant, 
for want of a proper return by the officer, who may live in 
a distant county, and hence can not amend it durins: the 
term; or, if taken, they are set aside or reversed on appeal. 
Depositions are in many cases suppressed for want of 
proper certificate from the officer, or informality in the 
manner of return ; indeed for depositions to be sustained 
under our present practice is the exception rather than the 
general rule. All this obstructs the machinery of the 
courts, causes frequent appeals to the Supreme and Appel- 
late Courts, and consequent delay and expense which could 
easily be remedied. 

It is most respectfully submitted, that if the suggestions 
contanied in this and the four preceding articles be prac- 
tically carried into effect, and if the judicial districts be so 
reduced in size as to insure sufficient time for the full call 
of all the dockets (the want of which, in many counties 
amounts to a denial of justice), and so as to give the judges 
that time for reading and reflection, so essentially necessary 
to a proper discharge of their high and responsible duties, 
then, it is most confidently believed that some of the great- 
est defects in our laws aad practice will be remedied, the 
enormous expenses of our judicial system will be reduced 
at least one-half and justice will be more speedily and 
effectually administered. 



136 BENCH AND BAR OF TEXAS. 

Before concluding these suggestions, it is proper to state 
that it was not intended in the first one, " A Proposed 
Amendment to our Statute of Trespass to Try Title," to 
require parties to set out their title papers in hoec verba ^ but 
simply to deraign them according to their legal effect » 
which can be done in a small space. Neither was it intended 
to compel a defendant to plead his title, when he simply 
relied upon his possession and the weakness of the plain- 
tilF's title; but in cases only where he sought to recover on 
the superiority of his own title. 

His sentence of judgment upon N. T. Dickerson, a 
preacher, shows the blending of sternesss and sympathy 
which entered into the composition of his character. He 
said : — 

"The most painful of my official duties is to pass the 
sentence of the law upon those who have been convicted. 
In your case this duty becomes doubly so by reason of 
your age and former ministerial position. Now past your 
three score years, once a minister of the gospel, the cardinal 
doctrine of which is peace on earth and good will toward 
men, it is indeed a sad commentary upon the frailty of 
humnn nature, and from which we may all take warning, 
that you should be arraigned and sentenced for the crime 
of murder. The verdict of the jury shows that in an 
unguarded hour, when reason had lost her sway and passion 
ruled, you took upon yourself the awful responsibility which 
belongs to God and the tribunals of justice only, to take 
the life of a fellow-being, and to send his spirit without 
previous preparation into the presence of Him who gave it. 
In justice to those better instincts of the human heart 
which still remains to man amid the ruins of his fall, and 
in extenuation of your seeming guilt, we indulge the sug- 
gestion that there are mitigating facts in your case, which 
the unfortunate circumstances by which you were surrounded 
prevented from being brought to light. Our human tribu- 
nals are far from being infallible ; we are liable often to 
err, but before the judgment bar to which we are all fast 
hastening, when the secrets of all hearts shall be made 
known, I sincerely trust that either from the true facts of 
your case, which may not have been fully developed here, 



MICAJAH HUBBARD BONNER. 137 

or from a bitter repentance acceptable in the sight of God, 
the final sentence of condemnation forever may not be passed 
upon you. Your general good character for peace, testified to 
on the trial by many of your old neighbors, and the meek- 
ness with which you have borne your long and painful 
confinement in jail, speak much in your favor. These 
considerations, with your age, will doubtless appeal strongly 
to the clemency of those into whose custody you are about 
to be committed. Continued good behavior on your part, 
may, as is often the case, shorten the term of your confine- 
ment. I strongly commend you to the mercy of Almighty 
God, who graciously promises never to forsake them who 
put their trust in Him. 

♦' It is, therefore, the sentence and judgment of this 
court that you be taken hence by the sheriff of Kaufman 
County, and by him safely conveyed to the penitentiary 
at Huntsville, there to be confined at hard labor for the 
term of ten years." 

The following lecture, delivered by Judge Bonner from 
the bench, upon the admission of an applicant to practice 
in his court, is worthy of preservation, and is commended 
to all young lawyers for its elevating sentiment and 
salutary counsel: — 

" Standing upon the threshold of your profession, within 
the vestibule of the great temple of justice, in which you 
are now called to oflficiate, as an introduction to my charge 
to you upon the true mission, duties and responsibilities of 
lawyers, I call your attention to the eloquent language of 
that profound scholar and jurist, Judge Story, at the close 
of his great work on Equity Jurisprudence. His remarks 
are applicable to the whole science of law. He says: * The 
grandeur of the entire plan can not be fully comprehended 
but by the persevering resources of many years. The 
masterpieces of ancient and modern art still continue to be 
the study and admiration of all those who aspire to a 
kindred excellence; and new and beautiful lights are per- 
petually reflected from them, which have been unseen or 
unfelt before. Let the youthful jurist, who seeks to en- 



138 BENCH AND BAR OF TEXAS. 

lighten his own age, or to instruct posterity, be admon- 
ished that it is by the same means, alone, that he can hope 
to reach the same end. Let it be his encouragement and 
consolation, that by the same means the same end can be 
reached. It is but for him to give his days and nights, 
with a sincere and constant vigor, to the labors of the great 
masters of his own profession, and, although he may now 
be but an humble worshiper at the entrance of the porch, 
he may hereafter entitle himself to a high place in the min- 
istrations at the altars of the sanctuary of justice.' 

" In entering upon this, one of the most important and re- 
sponsible of the learned professions, you will be expected, 
as an individual, to discharge more prominently your duties 
as a good citizen and member of society; and as a lawyer 
to discharge faithfully the new duties which you have as- 
sumed to the court, to your clients, and to yourself. The 
old members of the bar are passing away, and the young 
members must take their places. Soon to their keeping 
will be handed down the duties, responsibilities and esprit 
de corps of the profession. They should prepare them- 
selves to discharge well the one, and to guard sacredly the 
other. 

"A passing glance only will be given at the most im- 
portant of these, presenting the mere outlines alone, leav- 
ing the details to be filled up by your future observation 
and learning, and by intercourse with the honorable and 
meritorious members of the profession, with whom it will 
be your good fortune to associate. I can not do this more 
forcibly than by calling your attention to the Advocate's 
Oath of Geneva, of which it has been well said : ' Here 
you have the creed of ah upright and honorable lawyer. 
The clear, terse and lofty language in which it is expressed 
needs no argument to elucidate its principles, no eloquence 
to enforce its obligations. It has in it the sacred savor of 
divine inspiration, and sounds almost like a restored read- 
ing from Sinai's original but broken tablets.' The oath is 
in the following language: 'I solemnly swear, before 
Almighty God, to be faithful to the Republic and to the 



MICAJAH HUBBARD BONNER. 139 

Canton of Geneva ; never to depart from the respect due 
the tribunals and authorities; never to counsel or maintain 
a cause which does not appear to be just or equitable, 
unless it be in defense of an accused person; never to em- 
ploy, knowingly, for the purpose of maintaining the cause 
confided to me, any means contrary to the truth ; and 
never seek to mislead the judges by any artifice or false 
statements of facts or law ; to abstain from all offensive 
personality, and to advance no fact contrary to the honor 
and reputation of the parties, if it be not indispensable to 
the cause with which I may be charged ; not to encourao-e 
either the commencement or continuance of a suit from 
motives of passion or interest ; nor to reject, for any con- 
sideration personal to myself, the cause of the weak, the 
stranger, or the oppressed.' 

'* A brief analysis of this oath is worthy of your most 
serious consideration. As it required the advocate to be 
faithful to the Republic and to the Canton of Geneva, you 
are required to swear that you will support the Constitu- 
tion of the United States and the Slate of Texas ; that you 
will honestly demean yourself in the practice of law, and 
will discharge your duty to your clients to the best of your 
ability. 

"The proper construction and faithful administration of 
the laws on the part of our rulers, and the respect, venera- 
tion and obedience due them on the part of the people, 
constitute the great sheet-anchor of all good government ; 
but a latitudinous construction to suit the wishes of tyrants, 
and a blind and ignorant submission to fundamental inno- 
vations is the dangerous rock upon which the greatest gov- 
ernments of the world have been wrecked. 

" There is, against lawyers, a common but most erroneous 
prejudice growing out of improper practices of some un- 
worthy members of the profession. It should be your 
proud aim, both by your example and discourse, to remove 
this prejudice and to elevate the profession to its proper 
high standard. 

"Lawyers have ever been foremost to advocate the princi- 
ples of political liberty and reform, and to seal with their 



140 BENCH AND BAR OF TEXAS. 

blood their devotion to the cause. From their ranks, 
oftener than from other stations in life, are selected our 
politicians and statesmen in the executive and legislative 
departments of our government, both State and Federal ; 
and the judiciary department must necessarily be filled by 
them. History will fully sustain the following remarks of 
Chancellor Bibb in their vindication : — 

«' ' Do not cherish prejudice against lawyers as a class. 
They have been in all free governments the friends and sup- 
porters of liberty, exposing the corruption of ministers and 
the prostitution of judges. They are necessary to bring 
the ministers of the law to an account for oppression in 
office ; to warn judges of their duty ; to apprise the people 
of their rights ; to defend them against the encroachment 
of unconstitutional power ; to detect the frauds of the 
knavish and artful upon the honest and simple; they are 
useful in the greneral administration of the laws.' 

" Some of the most remarkable and eloquent speeches 
which have ever been delivered, and which have shaped the 
destiny of nations, will most strongly prove the above 
statement. Among many others which it will be your duty 
and, doubtless, your pleasure to read, I refer you to the 
celebrated speech of Lord Erskine, * On the Rights of 
Juries,' in the great case of the Dean of Asaph. 

" Well ma}' we be proud of such a legacy, and right earn- 
estly should we strive to sustain this noble reputation, and 
add to it our weight and our influence. It is estimated 
that there are forty thousand lawyers in the United States. 
There were one hundred and ninety-eight in a recent ses- 
sion of Congress, and many more, doubtless, in the several 
State Legislatures. In despite of an ignorant prejudice to 
the contrary, experience proves that legislation can not be 
carried on without the aid of lawyers ; for who can well 
make or amend that which he does not understand ? Law- 
yers have no richer harvest than that which grows up from 
ijrnorant or ill-advised legislation. 

" These thousands of lawyers are scattered in the princi- 
pal villages, towns and cities of the Union, and from their 
education, training, habits and station in life, necessarily 



MICAJAH HUBBARD BONNER. 141 

exercise a leadins; and controllino; influence over the senti- 
ments of society and the policy and destiny of state. The 
influence, for weal or woe, of such an array of trained talent 
and energy, permeating every circle of society, can scarcely 
be estimated. As one of this great army, in the grand 
drama of life, guard well your actions and your influence. 

" We are required never to depart from the respect due to 
the tribunals and to the authorities. In that book of books, 
written by the hand of the great Lawgiver himself, teaching 
us as man never taught, and whence we draw, as from a 
never-failing fountain, our great principles of law and 
equity, we are commanded to obey * the powers that be.' 
That greatest of the Apostles, who was brought up at the 
feet of Gamaliel, the learned doctor of the Jewish law, 
spoke on one occasion unwittingly against one of the judges. 
When informed of this he declared his ignorance of having 
thus spoken to a judge, and said: ' It is written: " ' Thou 
shalt not speak evil of the rulers of thy people." ' 

" You have now become a sworn officer of the court, and 
that which adds to the dignity of the court adds to your 
dignitj" ; and that which detracts from the dignity of the 
court detracts from your dignity. The individuality of the 
judge presiding is merged into his official position, and 
though you may not respect him as a man, you should have 
respect for his office. This, besides being your duty, you 
will find in your practice to be the best policy. If you are 
always courteous and respectful to the court, it will insure 
you the attention of a considerate judge, though he may be 
inclined to differ with you in your construction of the law 
or facts of the case. 

'•Another obligation to the court is most forcibly laid 
down in the advocates' oath, — that you will never employ, 
knowingly, for the purpose of maintaining the cause con- 
fided to 3^ou, any means contrary to truth, and will never 
seek to mislead the judges by an artifice or false statement 
of facts or law. As said by Chief Justice Gibson : ' It is 
a popular but gross mistake to suppose thai a lawyer owes 
no fidelity to any one except his client, and that the latter 
is the keeper of his professional conscience. He is es- 



142 BENCH AND BAR OF TEXAS. 

pecially bound by his ofBcial oath to behave himself in hm 
office of attorney, with all due fidelity to the court as well 
as to the client, and he violates it when he consciously 
presses for an unjust judgment, much more so when he 
presses for the conviction of an innocent man." 

"As has been most forcibly said, and which you can well 
adopt as one of your professional maxims : ' What is 
morally wrong can not be professionally right.' Truth, 
that mirror of justice and good faith, that talisman of in- 
tegrity, should always characterize your conduct as a lawyer. 
As a man, you should be honorable and high-toned in all 
your dealings, and as a lawyer, your duty to your client 
never demands of you that which, as a man, you would 
scorn to do for yourself. Your client can demand of you 
to protect his legal rights, but not to sacrifice your moral 
honesty; to see that he is not unlawfully imposed upon, 
but not that you impose upon yourself or the court. Re- 
member, then, to keep unsullied your professional reputa- 
tion, and that your obligations as a lawyer are not intended 
to supplant your obligations as a gentleman, but rather to 
add to them. 

"As an officer of the court you are expected to assist, not 
to lead it into error ; to hold up and strengthen the hands 
of the judge in the faithful performance of his high office of 
trust and confidence, so intimately connected with that per- 
sonal liberty and right of property in which every citizen 
is interested. Sadly to be pitied is that judge who thinks 
that he has arrived at the pinnacle of his profession and has 
nothing; more to learn. If ignorant and dull, and if it be 
possible for counsel to mislead him by any artifice or false 
statement of law or facts, then others, less scrupulous than 
yourself, might exert a more controlling influence over him. 
If, however, he should be learned in the book of human 
nature as well as in the books of the law, he would soon de- 
tect your false premises and fallacious arguments, and you 
would soon cease to exert that influence to which you should 
be entitled. 

"You are also required in your intercourse and practice 
in the court-room to abstain from all offensive jiersonalities. 



MICAJAH HUBBARD BONNER. 143 

and to advance no fact contrary to the reputation of the 
parties, if it be not indispensable to the cause with which 
you are charged. Zeal in behalf of clients, or desire for 
success, should never induce counsel to endeavor to obtain 
a verdict by arguments based upon other than the facts in 
evidence and the conclusions legitimately deducible 
from the law applicable to the same. All remarks calcu_ 
lated to excite undue passion or prejudice should be care- 
fully avoided ; and verdicts obtained by such unfair means 
should be promptly set aside. 

" You will find, as has been well remarked, that pleasant- 
ness and politeness are the cheapest and most remunerative 
commodities with which a young man ever entered into 
business. If some inconsiderate member of the bar, op- 
posing you, should resort to the shallow expedient of offen- 
sive personality, rather than sound argument, remember 
that the wise man has taught us that it is not always best 
to answer another according to his folly ; neither is it be- 
neath the dignity of a true gentleman to turn away wrath 
by a soft answer. It is an excellent practice prevailing in 
some of our best organized courts, and handed down to us 
by the fathers of the profession, and well worthy our emu- 
lation, that the members of the bar should always, in the 
business of the court-room, address each other as ' my 
brother.' 

" As far as possible, then, in your intercourse with your 
brother attorneys and the officers of the court generally, be 
on the very best terms ; merit their confidence and kind- 
ness, and reciprocate their favors and their courtesies. Re- 
member, however, that every pleasure has its snare, and 
that, sometimes, in the exhilaration of the social greeting 
and the boon companionship around the circuit, which is 
peculiar to lawyers above all others of the learned profes- 
sions, you may, almost insensibly, be led into excesses. How 
often, alas, have we been called to mourn the untimely fate 
of our most gifted members. They appeared as flashing 
meteors, but soon their dazzling brightness was hidden behind 
the clouds of dissipation. 

" There is another error into which unreflecting attorneys 



144 BENCH AND BAR OF TEXAS. 

sometimes fall — that of unnecessarily brow-beatini^ and 
abusino- witnesses and parties. You should recollect that 
many witnesses and parties are forced into court by com- 
pulsory process, and many good men, from the novelty of 
their situation, are naturally embarnissed. You should not 
make their position, and that which is often their misfor- 
tune, the occasion of their defamation by substituting 
privileged slander for legitimate argument. In a proper 
case, however, it is your I'ight, and it may be your duty, to 
deal with them as you think they deserve, and expose 
villiany, corruption and perjury, 

" Towards 3'our clients the very utmost good faith is 
required, and you should be true and faithful to their 
interests. The law is very guarded in this particular, and 
their privileged communications to you are held so sacred 
that the courts not only will not compel you to disclose 
them, but are forbidden to permit you to do so without 
their express consent ; this being both a right belonging to 
your clients and a duty owing to yourself. You should 
give them good counsel, learn the facts of the case, and 
advise them of the law bearing upon the same. Never 
from motives of interest or passion encourage either the 
commencement or continuance of a suit, nor reject from 
any personal consideration the cause of the weak, the 
stranger or the oppressed ; and never counsel or maintain a 
cause which does not appear to be just or equitable, unless 
it be in the defense of an accused person. 

" Under our laws every one is presumed innocent until 
proven guilty, and has a right to a fair and impartial trial 
by the court* of the country. Even the worst criminal in 
the land is entitled to a legal trial, and to be judged by the 
proper tribunal, and, though you may be impressed with a 
belief of his guilt, yet, it is your sworn duty, when in his 
defense, to see that he is not convicted contrary to the 
rules of law and the practice of the courts. The law, in 
its humanity, requires the court to appoint, when parties 
are too poor to employ, counsel. The profession has 
much of this * charity practice,' for which the world 
does not give it credit. When so appointed, it is your 



MICAJAH HUBBARD BONNER. 145 

duty to see that the defendant has a fair and impartial legal 
trial — nothing more, nothing less. 

"The property, reputation, and even the life of your 
client may be confided to your care; and, that you may 
properly protect them, it is your solemn duty to learn, and 
if possible, to master the law. Our system of law pro- 
cedure is peculiar, and our State an empire in its territory 
and resources, and, if undivided, bids fair soon to rank 
with the proudest in the Union. It presents extraordinary 
inducements for active brains and energetic hands, insuring 
both honorable reputation and comfortable competency. 
You must, how^ever, be the architect of your own profes- 
sional edifice. There is indeed here no ' royal road ' to 
preferment, no excellence without great labor. You will 
find that even in the viginti annorum lucubrationes, instead 
of having mastered the whole of the law, you will but have 
trained yourself for the great work ; that new and rich 
fields of inquiry open their harvest before you, and that 
new conquests invite you onward. Its boundaries, like 
space, seem to recede as we advance. A great master of 
the art, when asked in what does true eloquence consist, 
answered: ' Action, action, action ! ' One of the greatest 
sources of a lawyer's success is reading, ?'eatZi»^, reading ! 
Auotherof the most prolific sources of instruction, combining 
both the theory and the practice of the law, is the actual work 
in the court-room . Whether engaged or not in the particular 
case on trial, if you can consistently with other engage- 
ments, watch it closely and with the determination to learn. 
Besides the direct instruction, it may open to you a rich 
vein of thought and investigation. It is said thatthegreat 
Daniel Webster once gained, with a brief prepared for a 
justice court, a celebrated case, in which he received a 
large fee. Watch the learned lawyer, and the eloquent 
advocate, his ease, his self-possession and his learning; 
scan closely the pleadings, listen to the artful examination 
and cross-examination of the witnesses, and to the questions 
of evidence ; note the arrangement and manner of the 
argument, determining between the terse, pointed logic, 
and fervid zeal of the true advocate, and the rambling 
10 



146 BENCH AND BAR OF TEXAS. 

thoughts tintl the ' lono-, hollow harangues ' of others. In 
this way jou will learn the art of the law, that tact and 
practice so essential to success, and which no amount of 
reading can supply. Truly it may be said that ministers of 
the gospel may be aided by Divine inspiration, empirics in 
the medical profession may bury their ignorance and their 
blunders with their unfortunate dead, but the practice of 
the lawyer stands upon its own merits, exposed to the open 
gaze of the whole multitude, and a discerning public will 
not be slow to judge him by the proper standard. It is 
not expected that every one will make a distinguished 
advocate or a profound jurist, but all who aspire to become 
successful lawyers should start out with a reasonable 
amount of good, native intelligence, and a large share of 
energy. As between such and the man with fine natural 
talent, who relies mainly on that for success, you will find 
that in the end it will be but a renewal of the race between 
the hare and the tortoise, that energy and perseverance 
will outspeed the erratic flight of mere brilliant genius. 
Judge Story says : ' To no human science better than the 
law can be applied the precepts of sacred wisdom in regard 
to zeal and constancy in the search for truth. Here the 
race may not be to the swift, but assuredly the battle will 
be to the strong.' 

"As a young lawyer, and inexperienced, you should 
neither expect nor receive heavy and important cases at 
first. But ' despise not the day of small things ; ' for if 
you are faithful to the few cases confided to you, and prove 
yourself worthy and well qualified for their management, 
you will soon be invited into the higher walks and richer 
fields of the profession. Having other necessary qualifi- 
cations, you may rest assured of the truth of the maxim 
that ' if you keep your office, your office will keep you.' 
Punctuality and diligence in business will surely have their 
reward. Sooner or later merit and worth will be in de- 
mand. Qualify yourself for business; let it be known 
that in business hours you will be found at your office, that 
you will give your clients good, candid advice, and, you 
may rely upon it, business men will surely find you out. 



MICAJAH HUBBARD BONNER. 147 

Though you may by such advice, now and then, loose a fee 
in the particuhir case, yet it will be like bread cast upon 
the waters, by which you will in the future make friends 
and reputation worth to you many fees. The inspired 
writer says, ' a good name is rather to be chosen than great 
riches.' Our reputation, as a general rule, is not made in 
a day, but by slow degrees, insensibly as the dew is distilled 
from the heavens — here a little, and there a little. It 
grows with our growth and strengthens with our strength ; 
and one mishap may destroy that which it required years 
to rear. So demean yourself, then, that business and a 
good name will follow you. Scorn to resort to what is 
known by the profession as 'sharp practice.' Else far 
above the lone pettifogger and the contemptible shyster, 
who, jackal-like, disturb the peace and quiet of the com- 
munity by unearthing and stirring up litigation and lending 
their aid to disgraceful law suits. Such unworthy and dis- 
honorable members have brought reproach upon our noble 
profession. 

" Be then, as a patriotic citizen, faithful to the constitu- 
tion and laws of your country ; as a member of society 
and of your profession, high-toned and honorable in your 
deportment and dealings ; diligent in your studies and busi- 
ness ; always do unto others as, you would wish to be done 
by, and success and honor will crown your efforts." 



148 BENCH AND BAR OF TEXAS. 



Stockton p. Donley. 



The subject of this memoir was born in Howard County, 
Missouri, on the 27th of May, 1821. He was educated in 
Kentucky and was admitted to the bar in that State, from 
which he removed in 1846 to Texas and began the practice 
of law at Clarksville, but in 1847 established his office at 
Rusk and became the partner of James M. Anderson. Mr. 
Donley was a young man of steady and persevering habits. 
He rose rapidly in his profession and early distinguished 
himself, particularly as a criminal lawyer. In 1853 he was 
elected over the most formidable rivalry to the office of dis- 
trict attorney of the Sixth Judicial District, and found in 
this position a field inviting to his genius and congenial to 
his habits of mind, and he soon developed traits of char- 
acter which gained him great popularity as well as the repu- 
tation of being the most efficient prosecutor in the State. 
He possessed a thorough knowledge of the criminal law, 
and the inquisitive, prompt and resolute manner in which 
he sought its enforcement caused criminals to flee from his 
district as from a glance at certain conviction and sure pun- 
ishment. He was not only skilled in the legal art of fixing 
crime, but he was familiar with human nature, and an ex- 
pert in detecting and judging the motives of men and the 
springs of human action, so that it was almost impossible 
for the true history and character of any crime to escape 
his investigation. No web of perfidy was ever so artfully 
woven that he could not unravel its threads and expose it in 
its naked depravity, and the celebrated John Randolph, in 
his palmiest days, never reveled more in the detection of 
crim"' or lashed his guilty victims with more success. Yet 
he po -essed a mild and amiable disposition, whichbut gave 
additioi. 1 effect to his powers ; and when occasion required 



STOCKTON P. DONLEY. 149 

he would chastise his victims with an air of gentility that 
added smart to the excoriations of his lash, until writhinsr 
in the agonies of chagrin and conscious guilt they would, if 
permitted, have rushed from the court-room, as did the 
clergy of Virginia on one occasion to escape the piercing 
shafts of Patrick Henry. The people hailed him as a puri- 
fier of society and a blessing to his district. 

In 1860 he removed to Tyler, where he permanently 
located and entered upon an extensive practice ; but when 
the tocsin of civil war sounded in 1861 he cast his lot with 
the Confederacy and enlisted as a private soldier in Gregg's 
Regiment. He was soon promoted to a lieutenancy and dis- 
played conspicuous gallantry at the siege of Fort Donel- 
son, where he was captured with his entire command. On 
being exchanged he was, in consequence of failing health, 
assigned to post duty, and continued in that service until 
the close of the war, when, without repine at the loss of all 
his earthly possessions, he vigorously resumed the practice 
of his profession at Tyler. 

In 1866, at the solicitation of his friends, he permitted 
himself to be placed before the people as a candidate for a 
seat upon the Supreme bench, and was elected by the largest 
number of votes that had ever been cast in the State for 
that office. He filled this position with fidelity, ability and 
honor until he was removed as an obstructionist by military 
power in 1868. He then resumed his practice in copartner- 
ship with Gov. O. M. Roberts, and subsequently with John 
L. Henry, the latter being his partner at the time of his 
death, which occurred at Kaufman, Texas, on the 17th of 
February, 1871. 

Judge Donley was a lawyer of fine ability, and, as a 
judge of the Supreme Court, exhibited qualities which 
belong to the highest judicial character. The same learning, 
penetration, energy and devotion to duty which distin- 
guished his career at the bar, eminently marked his 
character upon the bench. NotAvithstanding that four years 
of military life had left a blank in the prime of his profes- 
sional life, he not only proved himself, though fresh from 
the distracting scenes of a long war, fully competent for 



150 BENCH AND BAR OF TEXAS. 

the position of Supreme judge, but his decisions portray 
an ability that would honor the ermine of any sanctuary 
of justice. He was a man of many nol)le qualities, and as 
a judge he was upright and conscientious, patient and 
polite in his audience, and accorded a courteous considera- 
tion to all suitors. He was, moreover, of an energetic and 
enterprising'nature, sincere and manly in his bearing, and 
a general favorite among the members of the bar. He was 
modest and retiring in his judicial demeanor. He never 
souo-ht to force his opinions upon others, yet maintained 
them with a vigor and erudition that often convinced and 
astonished his associates. 

In politics he was devoid of strong prejudices. Though a 
firm Democrat, he belonged to that conservative school 
which maintained an abiding faith in the capacity of the 
American people for self-government. 

While he was not an orator, so far as that quality consists 
of skill in the use of polished phrases and ornation of 
speech, his arguments were always logical and weighty 
with the pith of sound judgment ; and he was always ready 
to maintain his position with the naked sword of reason. 

His domestic life was of an exemplary order. His 
highest aim w^as to elevate his family to the highest attain- 
ment of virtue and happiness. He was first mariied in 
1854 to Miss Judith M. Evans, of Marshall, and she having 
died, he was again married in 1867 to Mrs. Emma Slaughter, 
of Tyler, and this excellent lady still survives him. 

Judge Donley was a man of but few faults, and his 
weakness weighed but little in the scale of his greatness. 
They were dimmed and obscured by the full blaze of his 
resplendent virtues, and his life as a lawyer, a judge and a 
patriot, is worthy of emulation, and deserves a proud niche 
in the column of Texas eminence. 

He was interred at Tyler, and the funeral procession was 
one of the largest and most imposing ever witnessed at that 
-place, which fitly indicated the love and esteem in which he 
was held by his people. 





^^^c? .-^^^O^^^^^ 



AMOS MORRILL. 151 



AMOS MORRILL, 



The distinguished subject of this memoir was born at 
Salisbury, Mass., on the 25th of August, 1809. His father 
was a native of the same place, and was a descendent of 
an old Puritan family which emigrated from England to 
Massachusetts at an early period of its history, and from 
which the distino^uished men of that name in New England 
likewise descended. 

The educational advantages of young Morrill, though 
mainly due to his own exertions, were ample and liberal. 
He was an energetic, aspiring youth, and taught school dur- 
ing the winter months to aid in defraying the expenses of a 
collegiate course, which he completed with honor and dis- 
tinction. He was graduated from Bowdoin College, in 
Maine, in the class of 1834, while the poet, Longfellow, 
was a professor in that institution; and having no fortune 
but his education, and no reliance but his own exertions, 
the qualities of his nature dictated adventure, and he em- 
igrated to Nashville, Tenn.; but finding no situation there 
and beino- short of means, he soon afterwards went to 
Murfreesboro. There he found employment as a teacher 
and acquired popularity by the new and successful methods 
of instruction which he adopted. But his aspirations were 
not yet satisfied, and, having continued in this occupation 
two years, during which he read law in his leisure moments, 
he went back to Massachusetts and studied law in the office 
of Eobert Cross, a distinguished lawyer of Amesbury ; and 
having acquired a thorough knowledge of the rudiments of 
common law he returned to Murfreesboro, obtained his 
license and began the practice of his profession at that place. 
But his ambitious and adventurous spirit yet coveted 
a brighter and a richer field, and in 1838 he removed to 



152 BENCH AND BAR OF TEXAS. 

Clarksville, Texas, where he pursued the study and practice 
of law, and by his untiring industry and indomitable energy 
soon took his stand at the head of the bar at that place, 
which, even at that early day, presented no mean array of 
legal talent. This portion of Texas at that time swarmed 
with outlaws from the States, and the position of a young 
lawyer, who necessarily comes in contact with all classes, 
was one of constant peril and temptation. But young Mor- 
rill was equal to every emergency, and it is said that on 
more than one occasion his presence of mind, firmness and 
intrepidity saved his life while grappling with the lawlessness 
which reigned over the country. 

He was here victorious also in a more happy respect. He 
was married at Clarksville in 1843 to Miss M. A. Dickson, 
who survives him. She is one of the most accomplished 
ladies the author has met in Texas, and, if the truth was 
known, was one of the chief agencies of the distinction and 
success of her husband. 

After his marriage he admitted J. J. Dickson, the brother 
of Mrs. Morrill, to a copartnership in his practice, which 
continued until 1856, when Mr. Morrill removed to Austin 
and associated in practice with the late Governor A. J. 
Hamilton. This firm became celebrated throughout the 
State, and continued to grow in popularity and success 
until the outbreak of the civil war. Mr. Morrill was an 
old line Whig and opposed secession. He was a conscien- 
tious and devoted Unionist, and his views, which he main- 
tained with great firmness and candor, having in a measure 
estranged his old friends who were ardent in their advocacy 
of extreme measures for the redress of Southern grievances, 
his position became unpleasant, and in 1862 he left his 
home in Austin and retired to Mexico, thence he went to 
New Orleans, and afterward sought his old home in Massa- 
chusetts. During the last year of the war he accepted a 
position .in the custom-house at New Orleans, where he 
anxiously awaited the time when he could return to his 
home in Texas, and when peace was proclaimed he returned 
to Austin intrusted with important business interests by 
the merchants of New York and Boston. 



AMOS MORRILL. 153 

In 1868 he was appointed chief justice of the Supreme 
Court of Texas, and held that office during the space of two 
years. In 1872 he was appointed, by President Grant, judge 
of the United States District Court for the Eastern District of 
Texas, upon which he settled at Galveston, where he purchased 
an elegant residence, and devoted his judicial vacations 
to the study of maritime law and admiralty, and made him- 
self master of that intricate branch of Federal jurispru- 
dence. He presided in the Federal court nearly twelve 
j'ears, during which many important cases, arising out of 
the new order of things occasioned by the war, came before 
him for adjudication, and it was on the reversal of his de- 
cision ill the case of the United States v. Legrand, by the 
Supreme Court of the United States, that the Civil Rights 
Act was declared unconstitutional. But he was a fine con- 
stitutional lawyer and was highly complimented by Judge 
Bradley for the almost uniform correctness of his decisions. 
It is said that on one occasion when Judge Bradley was 
presiding in the Circuit Court at Galveston he had prepared 
a decision, but before declaring it, read it to Judge Morrill, 
who dissented and gave his reasons. Judge Bradley was 
struck Avith their force, and upon advisement, yielded to 
Judge Morrill's views, and rendered his opinion accord- 
ingly. 

At the close of the spring term of the Federal court at 
Galveston, in 1883, Judge Morrill, in consequence of a 
severe attack of neuralgia in his face and eyes, and other- 
wise failing health, determined to resign his position upon 
the bench, and communicated his intention to his friends ; 
upon which the following correspondence occurred between 
him and the leading members of the the Galveston bar; — 

Hon. Amofs Morrill, Judge of the U. S. District Court for 
Eastern District of Texas, Galveston — 

Dear Sir : Our attention having recently been called to 
the report that you are contemplating a withdrawal from 
the active duties of your position as judge of the United 
States District Court, we, the undersigned members of the 
Galveston bar and officers of the United States Circuit and 



154 BENCH AND BAR OF TEXAS. 

District Courts in and for the Eastern District of Texas, 
apprehending that there may be foundation for the rumor, 
hasten to make linown to you our sincere regret that you 
should have in contemplation a step that will sever the 
agreeable official relations existing between yourself and 
us ; and to express the hope that you may, on reflection, 
find it not inconsistent with those considerations which are 
persuading you to a different course, to continue upon the 
bench in the official position which you now hold, and which 
you have, for more than ten years, filled with an earnest 
fidelity to the duties it imposes. 

[Signed] Your obedient servants, 

W. P. Ballinger, George W. Davis, 

M. F. MoTT, S. W. Jones, 

J. W. Terry, George E. Mann, 

Joseph Franklin, Walter Gresham, 

L. MussiNiA, P. C. Baker, 

Joseph H. Willson, C. S. Cleveland, 

M. E. Kleburg, William Sorley, 

A. Sampson, W. Hanscom, 

John W. Harris, Branch T. Masterson, 

Scott & Levi, Henry Sayles, 

H. R. Mann, L. E. Trezevant, 

R. V. Davidson, B. Boscatt, 

F. D. Minor, T. N. Waul, 

John C. Walker. 

To which Judge Morrill returned the following reply : — 

Oefice of U. S. District Judge, ^ 
Galveston, April 5th, 1883. 5 

Messrs. S. W. Jones, W. P. BaUinger, George E. Mann^ 
M. F. Mott, and others. Members of the Galveston Bar: 

Your communication stating that there is a report that I 
am seriously contemplating a withdrawal from the active 
duties of my position as judge of the Eastern District of 
Texas, has been handed to me by your committee, Messrs. 
Waul and Jones. 

The laws of the United States seem to assume that where 



AMOS MORRILL. 155 

a man has arrived at the age of seventy years, his mental 
or physical powers, or both, diminish to such a degree that 
he is disqualified to hold a judicial office, and though there 
may be prominent exceptions to this assumption, yet as a 
general rule it is believed to be well founded. And where 
there is a safe way and a doubtful one, prudence would 
require the safe way to be taken. 

After due consideration, I am inclined to believe that my 
failing health requires that I should soon resign the position 
which for the past eleven years has afforded me the greatest 
pleasure in my official intercourse with the bar at Galveston. 
Thanking you kindly for your complimentary letter, 
I remain sincerely yours, 

Amos Morrill. 

He soon after this sent up his resignation, and repaired 
to California with the hope of being benefited by the mild 
and uniform climate of the Pacific Slope, but on his 
return was detained some time at Denver by an attack of 
severe illness. In October, while sojourning temporarily 
at Knoxville, Tennessee, he was informed that his resigna- 
tion had not been accepted at Washington, and that there 
would be no November term of the District Court at Gal- 
veston unless held by him. He returned there and held 
the term, which closed his judicial career. 

On the adjournment of the court, he retired with 
somewhat improved health to Austin, where he spent the 
winter, but with the return of spring began a steady decline, 
and though possessing his habitual cheerfulness, it was 
evident to his friends that the number of his days were 
few. He died on the 5th of March, 1884, in the seventy- 
fourth year of his age. 

Judge Morrill bore throughout his long career the repu- 
tation of a man of strong convictions and stern uprightness 
of purpose. His name is prominently associated with the 
history of Texas from the time of its annexation to the 
Union to the day of his death. He grew with its growth, 
and ripened with its development, and as an old line Whig 
and strong Unionist, he was bold and outspoken in his 



156 BENCH AND BAR OF TEXAS. 

opposition to its secession from the Union. He was familiar 
with its laws and procedure from their origin throughout all 
the phases of their expansion, and as a lawyer, w:>s one of 
the most successful practitioners that the bar of Texas has 
ever produced. He had studied law both as a science and 
an art. He had studied its application as wel! as its doc- 
trine, and knew how to make the best use of his knowledge. 
His mind was active and vigorous, and readily grasped 
every suggestion of reason. He delighted to delve in the 
rugged fields of the profession, and explore the musty 
alcoves of its garnered wisdom, and he had gathered ample 
resources of precedent and parity from every feature of 
legal history. 

As chief justice of the Supreme Court of Texas, his 
decisions and influence greatly aided in moulding its juris- 
prudence into harmony with the political changes and new 
attitude which the civil war produced and established between 
the States and the Federal government. He occupied this 
position during a period when many novel questions arose 
pertaining to the innovations claimed to have been effected 
by the Constitutional amendments and reconstruction acts ; 
and, while he was at all times a staunch supporter of 
Federal supremacy and the views of his party, his judicial 
deportment was that of a just and upright judge and a 
patriot. 

But it was as a judge of the Federal court that he won 
his brightest laurels. It was here that his fearlessness of 
character, his uncompromising regard for truth and justice, 
and his extensive knowledge of law, were most strikingly 
exemplified. Having an important seaport in his district, 
many important cases involving intricate and varied ques- 
tions of commercial law and admiralty w^ere brought before 
him during his long course upon the Federal bench ; but 
the firmness, impartiality, ability and love of justice, 
which characterized his decisions, caused them to receive 
always the homage of acquiescence and satisfaction. 

Subsidiary to his knowledge and love of justice, he 
cherished a devotion to the duties of his office and a lofty 
pride in performing them in the most eminent manner. 



AMOS MORRILL. 157 

Hence, his decisions were rarely reversed, and elicited 
from Mr. Justice Bradley the compliment that if all the 
Federal judges were like him there would be no need of his 
making the circuit to hear appeals. 

That Mr. Justice Woods had also a high opinion of Judge 
Morrill, both as a man and as a judge, is warmly mani- 
fested in a letter of condolence addressed to Mrs. Morrill 
upon the death of her husband. He says : *« My long asso- 
ciation with him as his colleague in the public service, gave 
me an opportunity to learn his sterling qualities. I have 
always found him to be the soul of honor, the friend of 
justice, and the defender of the right. He had large ad- 
ministrative ability, was capable and courageous, and 
feared no man. As a friend, I know he was faithful, sin- 
cere and true." 

Blended with the fine legal mould of his mind and the 
sterner traits of his character, Judge Morrill possessed a 
nature tenderly sensitive to the beautiful and the senti- 
mental. He was fond of poetry, romance and music, and 
delighted in quenching his aesthetic thirst in the Pierian 
springs. and in the fountains of Parnassus. He was re- 
markably familiar with Shakespeare and Scott, and if 
almost any line of either of these authors was quoted he 
could repeat the next. He was also familiar with the 
Bible, and thought, like the venerable Macklin, who, on 
entering his son as a student of law at the Temple, en- 
joined upon him to make the Bible his first book of study. 
"The Bible, Mr. Mackhn, for a lawyer?" asked the 
learned gownsman. " Yes, sir," replied Macklin, " it is 
the properest and most scientific book for an honest lawyer, 
as there he will find the foundation of all law and 
morality." 

In his social and domestic relations. Judge Morrill was 
kind, genial and affectionate, and he endeavored to make 
all around him happy. He had the capacity of adapting 
himself to any company in which he might be thrown, 
which rendered him popular with all classes and enhanced 
his professional success. He took great pleasure in the 
enjoymsnt of young people, and even in the latter part of 



158 BENCH AND BAR OF TEXAS. 

his life often participated in their amusements. He never 
had any children of his own, but his house was the home of 
many others, for which he provided with a generous liber- 
ality. He assisted in the education of seven, four of whom 
were dependent entirely upon him for their advantages. 

Such a character could not long; remain under the ban of 
the ruling popular sentiment, on account of a mere differ- 
ence of political views, and long before his death the sacri- 
fices which he had made for the sake of conscientious 
convictions and honest principles were conceded by his 
bitterest political foes to be virtues worthy of esteem 
rather than qualities deserving condemnation. But at his 
death all political animosity sunk beneath the wellings of 
veneration, and reflecting only upon his great ability as a 
judge and his purity as a man, 

His friends estranged but yesterday, in sorrowing awe return 
To gather up his greatness into history's golden urn. 

On the death of Judge Morrill the bar of his district paid 
his memory the highest tribute of respect. The following 
resolutions were adopted ; — 

*'In the Circuit and District Courts of the United States in 
and for the Eastern District of Texas, at Galveston — 

[From the minutes of said courts, March term, April 
4th, 1884.] 

" T. N. Waul, on behalf of the bar of Galveston, this 
day appeared in open court, and presented the following 
proceedings and resolutions, which are here entered of 
record by direction of the court, to wit: — 

" 'At a meeting of the members of the bar, held at the 
Supreme Court room yesterday, to take such action as 
might be deemed approproate to evince their respect for 
the late Judge Morrill, the following proceedings were had : 
General T. N. Waul was called to the chair, and Eobert G. 
Street was requested to act as secretary. On motion of 
Honorable W. P. Baliinger, a committee was appointed to 
prepare suitable resolutions. 



AMOS MORRILL. 159 

"'The committee presented the following resolutions, 
which were unanimously adopted : — 

" ' Resolved, That the members of the bar of the United 
States Courts at Galveston desire to express their deep sor- 
row caused by the death of the Honorable Amos Morrill, 
who had been for more than ten years the judge of this 
Federal district. 

" ' J^eso^veJ, That the relations between Judge Morrill 
and the bar at Galveston, during all that period, were 
marked by urbanity, consideration and kindness on the part 
of Judge Morrill, inspiring permanent feelings and recol- 
lections of regard and esteem on the part of the bar toward 
him, of which we desire to preserve lasting record. 

" ^Resolved, That familiar as he was with Texas law and 
procedure from their commencement, one of the oldest 
and most successful lawyers remaining in the State, and for 
many years a judge of our Supreme Court, Judge Morrill 
brought to the Federal bench the largest experience and a 
devotion and pride in the duties of the station which he 
filled to the full measure of his ability, with impartiality, 
firmness and justice. 

" ' Resolved, That we shall always cherish the memory of 
Judge Morrill as a good citizen, friend and neighbor, with 
whom for many years our relations were most interesting 
and pleasant. 

'< ' Resolved, That we tender to his widow, Mrs. Morrill, 
well known to us to be eminently worthy of the profoundest 
regard, our earnest and warmest sympathy, and that a copy 
of these resolutions, signed by the president and secretary, 
be transmitted to her. 

" * Resolved, That these proceedings be presented by the 
president of this meeting to the United States District and 
Circuit Courts, now in session, with the request that they 
be placed on the records of the courts. 

" ' W. P. Ballinger, 
" ' J. T. Brady, 
<* * S. W. Jones, 



tk ( 



Committee. 



» »» 



160 BENCH AND BAR OF TEXAS. 



THOMAS H. DUVAL. 



This great and good man was born in Buckingham County, 
Virginia, on the 4th of November, 1813, and was a descend- 
ant of one of the old Huguenot families which fled from 
France to Virginia in consequence of the revocation of the 
Edict of Nantes. His father afterward removed his family 
to Nelson County, Kentucky, where he became a noted 
lawyer and politician, and W'hile quite a young man, was 
one of the representatives of that State in the United 
•States Congress. He subsequently became the famous 
Governor Duval, of Florida, having been appointed the first 
Governor of that Territory after its acquisition from Spain. 

Thomas received his education in St. Joseph's College at 
Bardstown, from which he was graduated in 1833. He 
afterward studied law in the office of Charles A. Wickliff, 
who was Postmaster-General during President Tyler's 
administration, and received both from his distinguished 
father and eminent preceptor the impression of those pro- 
fessional qualities which so highly adorned his own career. 
In 1835 he removed to Tallahassee, Florida, where he was 
admitted to the bar and began the practice of his profes- 
sion ; and having served as circuit clerk of Leon County, 
and ex-oficio clerk of the Court of Appeals, he was, in 1843, 
appointed by the President secretary of the Territory of 
Florida. Li 1845 he emigrated to Austin, Texas, where he 
resided during the remainder of his life. In 1846 he was 
appointed one of the reporters of the Supreme Court, and 
in 1851 was elected Secretary of State. In 1855 he was 
elected judge of the Second Judicial District, and was 
re-elected in 1856. When the western district of Texas 
was created in 1857, he was appointed judge of the United 



THOMAS H. DUVAL. 161 

States court for that district, and held this position until 
the outbreak of the civil war. 

Judge Duval, though at that time a Jacksonian Democrat, 
was bitterly opposed to secession. He bore an intense and 
unswerving devotion to the Union, and considered the Con- 
stitution as a palladium of protection to every interest and 
every section of the country. He was honest and consci- 
entious in his convictions. Through all the varied spheres 
of his life not a breath of suspicion or doubt ever assailed 
the purity of his motives or the integrity of his acts ; but 
in all, he maintained an exalted position in the esteem of 
his associates, and in the confidence and afi'ections of the 
people. While, acting in accordance with his views, he 
absented himself from the State during the existence of a 
war, the inception of which he abhorred, he was among the 
first to return in 1805, and immediately devoted his influ- 
ences and his energies to the amelioration of the condition 
of his people. The editor of the Galveston JVeivs, says : 
" When he arrived at Galveston, just after the breaking up 
of the Confederate camps in 1865, and when the interior 
of the State was the theater of anarchy, he asked the writer 
whether it would be safe for him, a Union man, to proceed to 
Austin with his family. The answer was, that it would be 
so unless he had private enemies. He said that he did not 
think he had one in the world. He returned to his home 
and was welcomed b}^ his old friends of every shade of 
opinion." 

Judge Duval was a profound lawyer, and his success at 
the bar was assured by many of the loftiest traits that 
adorn the profession. He was endowed by nature with an 
intellect singularly adapted to the discernment of truth, 
however veiled in the speciousness of reason, or enveloped 
in the delusions of circumstance ; and his mind was embel- 
lished by literary attainments of a high order. He early 
learned that application, promptness and fidelity were the 
qualities which insure professional success, and with these 
he brought to the bar an honorable ambition and a zealous 
purpose which kindled and prompted his genius to the 
noblest exertion in every sphere in which his professional 
11 



162 BENCH AND BAR OF TEXAS. 

services were employed. His industry was indefatigable; 
and so versatile was his capacity for usefulness, that no 
sphere of public duty seemed foreign to its adaptation or 
incompatible with its highest attainment. While he pos- 
sessed no one dazzling feature of character, he presented 
that full orb of virtue, ability and usefulness which is 
rendered effulgent by its uniqueness and uniformity. 

As reporter of the Supreme Court, his powers of analy- 
sis, his penetration and discriminating judgment are con- 
spicuously exemplified in the correctness of his interpretation 
and in the clear and concise method of his compendiums 
and syllabi; and as Secretary of State, his official conduct 
was marked by the highest order of competency, by an 
ardent devotion to duty, and by an efficiency which pro- 
moted the public interest and adorned the administration of 
which he was a component. 

His energy and integrity, his knowledge of law, and his 
sound views of justice and equity made him an excellent 
judge ; and his long judicial career was characterized by an 
uprightness, impartiality and love of justice which estab- 
lished a striking similarity and invites a just comparison 
between him and Sir Mathew Hale. His decisions are 
models of plain and precise enunciation, and of perspicuous 
reasoning. He was firm in his convictions, yet tolerant of 
the opinions of others, and never obtruded or urged the 
reception of his views as a condition of his courtesy and 
regard. 

He was a man of exemplary rectitude in all the relations 
of life — a fond husband, an affectionate father, a warm 
friend, and a great favorite with the members of the bar. 
Like most great lawyers, and particularly great judges, he 
took especial interest in young men who began the practice 
of law before him, and afforded them every opportunity 
and advantage which a firm judicial impartiality would 
permit. 

He was married in 1839 to Miss Laura P Duval, daughter 
of Captain Duval, of the United States army, a lady es- 
teemed as one of the truest and noblest of her sex, and 
who no doubt wove the briofhtest threads in the woof of his 



THOMAS H. DUVAL. 163 

life. They reared an interesting and accomplished family, 
and one of their daughters, who married Judge C. S. West, 
now of the Supreme Court, was a lady of decided poetical 
genius. 

Judge Duval had two brothers who were in Fannin's 
command when it was captured at Goliad in 1836. One of 
them was among the victims of that massacre. The other 
made his escape by feigning death while the other prisoners 
were being shot, and, after many dangers and hardships, 
rejoined the Texan army, and hud an opportunity of aveng- 
ing the death of his brother. 

In the fall of 1880 Judge Duval, now full of years and 
in feeble health, in company with his aged wife, visited his 
daughter, who had married Captain C. S. Roberts, of the 
United States army, and was residing at Fort Omaha, 
Nebraska. Here he was stricken with his last illness, and 
died on the 10th of October, 1880. His remains were 
brought to Austin for burial, where they rest by the side of 
many who shared the ambitions, the aspirations and the 
achievements of his long and useful life. 

His remains were i»eceived and accompanied to their last 
resting place by a committee of distinguished gentlemen in 
pursuance of the following resolutions adopted at a meeting 
of the Austin bar, convened to do honor to his memory : 

'"'■Resolved^ That in the public and professional life, the 
labors and honors of Judge Duval, all those qualities of 
head and heart are found, which make up the good citizen, 
the honorable and conscientious lawyer and the able upright 
and exalted judge. In all the positions which he held his 
kindness to his associates, his justice to all, his purity and 
goodness of heart, his unflinching fidelity to the right, even 
in times of fiercest political contests, and the contribution 
of his best powers to the discharge of every duty, secured 
for him the permanent esteem and affection of his fellow- 
citizens. If not brilliantly great, he was nevertheless 
great ; for to say of one who sat nearly a quarter of a cen- 
tury upop the bench, as can be said of him, that he was 
fully adequate in ability and learning to every judicial task ; 
that he was always calm, patient and laborious, never an- 



164 BENCH AND BAR OF TEXAS. 

nouncing his conclusions until thoroughly comprehending 
all the points of the case; that he was impartial and un- 
varying in his courtesy, sustaining the most fraternal rela- 
tions to the officers of his court and bar, commanding no 
less their esteem than their love, it is to pay a tribute which 
belongfs alone to true o-reatness. 

^'■.Resolved, That the members of the bar and officers of 
the court attend the funeral of the distinguished deceased 
in a body, and that the chairman of this meeting appoint a 
committee of twelve members of the bar to meet his re- 
mains on their arrival in this city." 

The distinguished gentlemen who bore his pall to the 
grave and with solemn reverence tossed the cold clods upon 
his coffin consummated the last act which the honors of the 
world could perform for the mortal parts of a great and 
good man; but turning away from these mournful obsequies 
we find him still living in the good he accomplished, in the 
affections of his people, and in the records of his country. 



M. D. ECTOR. 165 



M. D. ECTOR. 



Pericles, in his famous funeral oration, pponounced in 
honor of those who fell in the Samian war, endeavored in 
an elegant manner to impress the patriotism of the dead as 
an example of glory upon the living; that their deaths 
were a joint and hallowed offering upon the altars of their 
country ; and that, while collectively they gave to it their 
lives, individually they received that renown which never 
grows old, and the most distinguished tomb they could 
have — the urn of glory which they left behind them, the 
subject of everlasting record ; that for illustrious men the 
whole earth is the sepulchre, and not only do the inscrip- 
tions upon columns erected in their own country preserve 
their memories, but in all lands there dwells for them an 
unwritten memorial of the heart, more durable than any 
material monument. 

There is not an instance in the history of this world in 
which any class of individuals exhibited a loftier patriotism, 
a more glowing public pride or a more splendid gallantry 
than that displayed during the civil war by the members of 
the bar throughout the South. No sooner had the first 
cloud-caps of the coming struggle heaved in view, than 
their briefs were left unargued, their books were laid away, 
their offices were closed, and with drawn swords they were 
found in every town, in every village and in every hamlet, 
marshalling their countrymen in the array of battle, organ- 
izing companies and regiments, encouraging the brave and 
shaming the timid, leading the advancing files, swelling the 
ranks or heading the hurrying columns of the Confederacy. 
Everywhere and in all positions, they met the issue with a 
determination and devotion that challenged comparison in 
the annals; of ))atriotism. 



166 BENCH AND BAR OF TEXAS. 

Many of them had exhausted theii' pens through the 
press and their powers of speech upon the hustings and in 
the halls of legislation, in argument of the great questions 
which were now certified by the voice of honor and of 
patriotism to the arbitrament of war. Before this tribunal 
they were prepared to vindicate and seal with their blood 
the scroll of principles which they advocated, and they at 
once sunk the lawyer in the patriot, the patriot in the 
soldier, and the soldier in the martyr to what they conceived 
to be their sacred rights and the honor of their country. 
Among these there were few more prominent and distin- 
guished than the gentleman who forms the subject of this 
memoir. He promptly accepted the issue of battle, and 
his sword flashed in the thickest of the fight. 

Mathew Duncan Ector was born in Putnam County, Geor- 
gia, on the 28th day of February, 1822, and was of Scotch- 
Irish parentage. He was educated chiefly at LaGrange, 
Georgia, and at Centre College, in Kentucky, Having care- 
fully and assiduously prepared himself for the bar, he began 
the practice of law in his native State in 1844, and in 1846 
was a member of the Georgia Legislature. He afterwards 
spent some time in California, and, having returned to 
Georgia, he emigrated to Texas in 1849 and settled at 
Henderson, where he entered upon a vigorous and success- 
ful practice, and obtained an enviable distinction at the bar. 

As a lawyer he was habitually calm, patient and practical, 
and he made the dictates of dnty the rule of his conduct. 
He was unswerving in his integrity and devotion to princi- 
ple, conscientiously faithful to the interests of his clients, 
and engaged all the powers of his mind and all the energies 
of his nature in the elimination of truth and the vindication 
of justice. 

Chivalrous and magnanimous in his disposition, he ab- 
horred the methods of artifice, and spurned a cause which 
he believed unjust. These well known features of his 
character engaged universal confidence in him as a lawyer 
and the highest respect for him as a man. He served in 
the Texas Legislature in 1855, and was a prominent mem- 
ber of that body. In 1861 he enlisted as a private in one 



M. D. ECTOR. 167 

of the first companies raised in Texas for the Confederate 
service, and was soon afterwards appointed adjutant to 
General Hogg. He was made a colonel for gallantrj^ in 
the field, and two weeks later was commissioned brio:adier- 
general for the same reason. . He served with distinction at 
Chickamauga and Murfreesboro' and other battles of the 
Georgia campaign, and received a wound near Atlanta on 
the 28th of July, 1864, which caused the amputation of his 
left leg. Having recovered sufficiently from the shock, he 
again reported for duty, and was assigned to the com- 
mand of troops at Mobile about the time that the news 
of the surrender of General Lee reached the Southern 
Department. With a sad but dauntless heart he returned 
to his home in Texas and resumed his profession ; but his 
efficient services were soon called to another sphere of pub- 
lic duty, and in 1866 he was elected judge of the Sixth 
Judicial District. He held this office one year, and was 
then deposed by the Federal general, Reynolds, as being 
one of the Southern obstructionists. In 1867 he removed 
to Marshall, and resumed the practice of law in copart- 
nership with Col. N. H. AVilson, and the firm enjoyed a 
distinguished reputation. In 1874 Judge Ector was ap- 
pointed by Governor Coke judge of his old district, which 
had noAV become the Seventh District, in consequence of 
the reorganization of the judicial districts of the State. 

When the Court of Appeals was erected by the Consti- 
tution of 1875, he was elected one of the judges of that 
tribunal, and upon its organization in 1876 was chosen by 
his colleagues its presiding judge, and held that position at 
the time of his death, which occurred at Tvler durins; the 
session of the court, on the 29th of October, 1879. 

Judge Ector brought to the bench of Appeals the varied 
experience of a long and successful criminal practice, which 
eminently qualified him for the position. As chief judge 
of this court of last resort, upon which hung the issues of 
life and liberty to the unfortunate victims of misfortune, 
of vice or passion, he admirably blended the firmness and 
candor of judicial dignity and official duty with the dictates 
of compassion and mercy. He never lost sight or sensitive- 



168 BENCH AND BAR OF TEXAS. 

ness of the responsibility of his position, and announced no 
opinion until he was assured that it was fully justified by the 
facts and demanded by the law, and these he made the scru- 
pulous measure of his judgments. He was therefore just 
and correct in his decisions, and his career upon the bench 
was highly instructive as well as exemplary. His desire 
was to elevate the new court at once to the highest plain of 
appellate dignity, wisdom and efficiency, and his decisions 
add much to the criminal jurisprudence of the State. 

The life of Judge Ector was not exempt from the sor- 
rows which beset the paths of men. Death often invaded 
the altar of his affection, and tore away the companion of 
his bosom. He was married three times. He was first 
married in 1842 to Miss Louisa Phillips, of Georgia, who 
died in 1848, and in 1851 he was again married, to Miss 
Letitia M. Graham. She died in 1859, and in 1864 he was 
married the third time, to Miss Sallie P. Chew, of Missis- 
sippi, a lady endowed with many charming virtues, and who 
cherishes his memory with the devotion which characterizes 
the noblest of women. 

In social life Judge Ector was a model of courtesy, gen- 
tleness and amiability. He was constant in his friendship 
and delighted in acts of civility and kindness. One of his 
associates upon the bench, Judge John P. AVhite, says of 
him: " In his character were mixed and blended all those 
genial traits and pure elements which go to make up that 
highest perfection of humanit}^ God's noblest work — an 
honest man." 

He was held equally as high in the esteem of the judges 
of the other high courts and in the affections of the people. 
His remains were borne to their burial at Marshall by the 
judges of the Court of Appeals, the justices of the Supreme 
Court, the Commissioners of Appeals, and the members 
and attendants of the bar of Tyler; and were thus laid 
away with all the honors which his associates and profes- 
sional brethren could bestow upon them. Ibi qiciescant in 
pace. 



CM. WINKLER. 169 



C. M. WINKLER. 



Clinton McKamy Winkler, a judge of the Texas Court of 
Appeals, was born in Burke County, North Carolina, on 
the 19th day of October, 1821, but was reared in part in 
the State of Indiana, whither his father, who was a planter, 
removed his family in 1835. Young Winkler, having re- 
ceived such education in the common schools of the country 
as the duties of the farm would permit, and from his 
mother, who was an educated lady, emigrated in 1840 to 
the Kepublic of Texas, and settled at Franklin, at that 
time the county seat of Robertson County, where he en- 
gaged employment in the office of the county clerk, and 
devoted his leisure hours to the study of law. In 1843 he 
was appointed deputy clerk of the district court, and con- 
tinued at the same time his preparation for the bar, to 
which he was soon afterwards admitted. In 1844 he was 
elected to the same office, from which he retired in 1846, 
and entered vigorously upon the practice of his profession. 
In 1848 he removed to Corsicana, where he permanently 
located, and soon acquired distinction in his profession and 
a high place in the esteem and confidence of his fellow- 
citizens. He was, during the same year, elected a member 
of the Second Legislature, convened after the annexation of 
the Republic to the Union. 

With the exception of one term in the Legislature, Mr. 
Winkler pursued his profession,;without intermission until 
1861, when he promptly responded to the gage of battle 
offered to his section, and took up arms in behalf of the 
South, to the cause of which he was ardently devoted. He 
was not altogether a stranger to the dangers and hardships 
of war. Having settled on the frontier of Texas at a time 
Avhen it needed protection from the invasion of the ruthless 



170 BENCH AND BAR OF TEXAS. 

savage, he was early inured to the life of a ranger, and had 
learned something of the art of warfare in defending the 
firesides and cornfields of the border settlers, among whom 
he dwelt. 

Upon the election of Mr. Lincoln to the Presidency, by 
a faction which proclaimed an ''irrepressible conflict" 
with the institutions of the South and the Constitution of 
the Union, he saw no hopes for his country but in seces- 
sion, and then in war, bitter, fierce and successful ; and 
early in 1861 he was elected captain of an infantry com- 
pany, which formed a part of Hood's famous regiment, 
the Fourth Texas, to the command of which he attained in 
the latter part of the struggle. He was a brave soldier 
and an excellent officer. He was greatly admired and be- 
loved by his men, and they would have followed him into 
the mouths of the guns of Balaklava. His services were 
conspicuous in all the great battles of Virginia, and ended 
with the surrender of General Lee at Appomattox. He was 
severely wounded at the battle of Gettysburg, where his 
regiment was engaged in the death-struggle for the posses- 
sion of Round Top, and many instances of his gallantry are 
related. 

At the expiration of the war, Colonel Winkler returned 
to Corsicana and resumed the practice of his profession. In 
1866 he was prematurely declared to be elected judge of the 
Thirteenth Judicial District, and being properly qualified, 
entered upon the discharge of the duties of that office ; but 
having subsequently ascertained that his competitor was 
really elected, he immediately surrendered the office and 
returned to the bar, and devoted his energies exclusively to 
his practice until he was elected in 1873 a member of the 
Thirteenth Legislature, in which he w^as conspicuous for the 
fidelity with which he represented the interests of his con- 
stituents and for the zeal with which he endeavored to 
promote the general welfare of the State, 

In 1876 he was elected by the people one of the judges 
of the Court of Appeals, and held this office at the time of 
his death, which occurred after a brief illness while engaged 
in his judicial labors, at Austin, on the 13th of May, 1882. 



CM. WINKLER. 171 

While Judge Winkler was by no means a man of brilliant 
genius, yet, if the soul and feeling which eloquently spoke 
in all his acts ; if an intellectual capacity for the most use- 
ful and honorable attainment in every sphere of life, are 
elements of genius, he participated largely in that subtle 
quality. While he may not have had that corruscating brill - 
iancy of imagination which Shakespeare characterizes as a 
" fine frenzy," he possessed a clear and accurate perception, 
a sound and penetrating judgment, and an indefatigable 
power of application. Hence, his knowledge of law was 
thorough and always at his command. 

As a lawyer, he was alert, patient and painstakin"-, and 
was sedulous in the preparation of his cases. These qual- 
ities bore him steadily u[)ward in his profession, and, com- 
bined with a firm and unbending integrity, a vigorous com- 
mon sense, and a sagacity which embraced alike the grandest 
outlines and the minutest details, eminently qualified 
him for the position he occupied upon the bench. 

As a judge of the Court of Appeals, he was conscientious 
and upright, and bent his untiring energies to the adjust- 
ment of every case, by the strict rule of law, and the even 
scale of justice. He was thoroughly familiar with the 
Criminal Code of Texas, and. his long experience at the bar 
had rendered him expert in the methods of criminal pro- 
cedure. He was master of the science of criminal plead- 
ing, skillful in determining the character and force of 
technicalities, and his decisions are characterized by an 
unvarnished chain of logic, a just interpretation of fact, a 
firm application of law, and a thorough vindication of 
justice. 

As a man, the character of Judge Winkler was symmetri- 
cal and elevated. His ruling attributes were candor, truth 
and charity, and while he was modest in his personal exactions 
he was exceedingly tender and considerate in regard to the 
feelings and rights of others. He was faithful to his 
friends, and his domestic virtues were exalted by the most 
devoted sentiments of love and affection. He was first 
married in 1848 to Miss Louisa Smith, of Navarro County, 
an excellent lady, who died in 18G1. In January, 18G4, he 



172 BENCH AND BAR OF TEXAS. 

was married at Richmond, Va., to Miss Angie V. Smith, a 
hidy of rave accomplishments who still survives him, and who 
by her culture and literary attainments has woven from the 
sable weeds of widowhood the bright robes of prosperity 
and distinction. She is the founder and the editress of that 
sparkling publication, the Oorsicana Prairie Flower. 

Judge Winkler was held in the highest esteem by his 
brethren of the bench, and the members of the bar. His 
uniform courtesy and kindness endeared him to all who as- 
sociated with him or practiced in his court, and his remains 
were attended to their burial at Corsicana by the judges of 
the high courts and a concourse of admiring friends. He 
was a sincere believer in the promises of Scripture, and 
died in the firm faith of Christianity. His name is lumin- 
ously inscribed in the military and judicial annals of Texas. 
Ibi emicat in o&ternum. 



BENJAiMIN C. FRANKLIN. 173 



BENJAMIN C. FRANRLIN. 



The subject of this memoir was born in the State of 
Georgia, on the 25tli of April, 1805, and was educated at 
Franklin College, at Athens. Having graduated from this 
institution he studied law, Avas admitted to the bar and 
began the practice of his profession at Macon, Georgia, in 
copartnership with ex-Governor Charles J. McDonald, of 
that State. 

In 1835 his sympathies were enlisted in behalf of the 
Texans in their struggle for independence, and he 
determined to identify his prospects with their efforts. In 
April of that year he landed at Valasco, at the mouth of 
the Brazos River, and soon afterward joined an expedition 
against the Indians, who, instigated by the Mexicans, were 
devastating the border settlements. He was at the first 
revolutionary consultation at Columbia, and when the 
Texan army was organized near Gonzales for the purpose 
of resisting the Mexican invasion under General Santa 
Anna, he took an active and energetic part in raising a 
company, of which Robert J. Colder was elected captain, 
and which formed a part of Colonel Burleson's regiment. 
Early in April, 1836, he was commissioned a captain by 
President Burnett and detailed to organize a company of 
scouts ; but was prevented from complying with his 
instructions by the advance of the Mexicans, which precipi- 
tated the battle of San Jacinto, in which he fought in the 
ranks under his former captain, using his Mississippi rifle 
with, no doubt, the same deliberation and earnestness which 
characterized his actions Ihrouo-h life. ■ 

Soon after the battle of San Jacinto he was appointed 
judge of the District of Brazos, afterward the Second Dis- 
trict of the Republic, and was thus one of the first judicial 
functionaries of the new government. He served upon the 
bench for the space of three years, during which he paid a 



174 BENCH AND BAR OF TEXAS. 

short visit to his old home in Georgia, and was married 
there on the 31st of October to Miss Eliza C. Brantley, a 
daughter of Kev. Wm. S. Brantley, of South Carolina, who 
was a noble and accomplished lady, who accompanied him 
in his return to Texas, and cheerfully and devotedly shared 
with him the dangers-, hardships and deprivations neces- 
sarily incident to life in the new and struggling Republic 
until her death, which occurred in 1843. 

In 1840 he retired from the bench and established his 
residence in Galveston, where he actively engaged in an 
extensive practice which embraced the whole of South- 
eastern Texas, directing his attention largely to the location 
of lands and to the important litigation which necessarily 
grew out of the intricate land system of the country. In 
conjunction with J. C. Watrous he represented Edward 
Hall in his contest with Dr. Levi Jones in regard to the 
location of land scrip upon Galveston Island. This con- 
test resulted in a compromise by which that part of the 
island west of the city league was divided into fourteen 
sections, each containing about twelve hundred and eighty 
acres — the odd numbered sections, from one to eleven, 
being allotted to Hall, and the even numbered sections, 
from two to fourteen, to Jones. 

The government of the Republic had, at an early day, 
caused the entire island to be laid out in lots of ten acres, 
and provided for the sale of them for the purpose of raising 
money to relieve the necessitous condition of the public 
finances ; but, after having sold a number of these lots at 
what was considered an inadequate price, it abandoned the 
policy of disposing of them in this manner, and with thc' 
exception of the lots thus sold, the titles to the entire island, 
west of the city league, have their origin in the Hall-Jones 
compromise. 

Judge Franklin was also one of the counsel employed 
by the city of Galveston in its litigation with the wharf 
company and others, which involved the title to the flats, 
or shallow water extending along the bay or harbor fronts 
of the city, and which also resulted in a compromise, by 
which a third interest in them was vested in the city, with 
a provision ag.iinst alienation withrut the consent of four- 



BENJAMIN C. FRANKLIN. 175 

fifths of its qualified voters. He represented Galveston 
County four terms in the Legislature, and was chairman 
of the judiciary committee during the whole of his legisla- 
tive career. This position enabled him to exercise great 
influence in originating and shaping the laws of the 
State; and many of those which were enacted during that 
period bear the impression of his judgment and genius. 
The scope and intensity of his patriotism, his penetrating 
perception, sound judgment, and untiring industry ren- 
dered him an efficient legislator, and his energies were 
devoted to the promotion of every interest of the State. 
Immersed in the requirements of his long public services 
and the demands of an extensive practice, he yet found 
time for oreneral culture, and was a man of varied accom- 
plishments and a fine schohir. His aesthetic taste led him 
to admire the beauties of literature, and impressed his 
address with chastity and critical correctness. 

Although he was a true Southerner he took no active 
part in the war between the States, being too old for mili- 
tary service, and a great sufferer from rheumatism during 
the entire period of the struggle. He had retired to a 
small farm near Livingston, in Polk County, and while he 
continued to practice law when urged by his old clients, he 
made no effort to re-establish his extensive practice. His 
sufferings from rheumatism, aggravated by a malarial 
attack, his losses by the war, and above all his despond- 
ency in regard to the political and social future of his 
country left but little incentive to begin the strno-oje of 
life anew. He led a retired life upon his farm until 1870, 
when he returned to Galveston, and seeing some chance to 
aid his countrymen in their efforts to throw off the dis- 
tasteful rule which had been fastened upon them during the 
military occupation of the State, he once more embarked 
in active life, and took part in the first decisive movement 
on the part of the people to regain the control of the 
State. This was the organization of the tax-payers of 
Galveston to resist by all lawful means the levies made to 
sustain a standing army of militia, and a cumbrous and 
irresponsible school system designed by means of a host 
of officials to perpetuate the rule of the Republican party 



176 BENCH AND BAR OF TEXAS. 

in the State, which was utterly repugnant to a hirge 
majority of the people. This movement was followed 
throuo-hout Texas, and he lived to see the clouds that 
lowered in the political heavens of his State pass away 
behind the horizon, and its people once more on the high- 
way to that prosperity which destiny and nature had shaped 
for them. He died unexpectedly on the 25th of December, 
1873, soon after he had been elected to represent the Gal- 
veston District in the State Senate, and in the midst of his 
plans to devote the riper years of his life to the service 
of his country. 

Judge Franklin was a lawj'-er of fine ability, and thoroughly 
acquainted with the history and character of Texas juris- 
prudence. He had watched and weighed every feature that 
entered into its composition, and there was no one more 
familiar with the poised effects and combined import of its 
blended elements. He was never at a loss for the proper 
methods for reaching the true issue in a controversy, and 
rarely erred in the selection of his legal standpoints. He 
was, therefore, a safe counselor, and possessed the highest 
respect of the bench and bar, and the implicit- confidence 
of the people. 

Although he was stern in the maintenance of that which 
he believed to be right, and in the pursuit of the dictates of 
duty, his moderation was no less marked than his integrity. 
While he was a man of earnest and intense convictions, his 
actions and expressions were always tempered with mildness 
and discretion. Hence he was respected and esteemed by 
men of all classes and politics. 

The Constitution of 1869 provided that, within five years 
from the time of its adoption, the laws, both civil and 
criminal, should be revised and published in such manner as 
the Legislature might direct. A bill to meet this require- 
ment of the organic law was introduced in the Legislature 
in 1872, but for some reason or other failed of enactment. 
To properl}'^ revise and digest the laws of a State is a task 
requiring the highest legal and legislative skill, and in the 
bill which was introduced for that purpose, the name of 
Judge Franklin stood, by common acceptance, at the head 
of the list of the proposed revisors, thus testifying to the 



BENJAMIN C. FRANKLIN. 177 

general appreciation of his ability and eminent qualification 
for the performance of the responsible and arduous duty. 

Nor was this estimate of his character confined to his 
friends or to the Democratic party. The Republican Gov- 
ernor, E. J. Davis, undertook by virtue of his own authority 
to repair the omission of the Legislature, and proceeded to 
appoint a commission to revise the laws of the State. This 
commission he tendered to Judge Franklin, as one whose 
appointment he knew would be approved by the impartial 
and enlightened judgment of all good men of both parties 
in the State, and in the commission he declared, that 
*' reposing special trust and full confidence in the loyalty, 
integrity and ability of Benjamin C. FrankHn," he did " by 
virtue of the authority vested in him by the Constitution 
and laws of the State, constitute and appoint the said 
Benjamin C. Franklin, commissioner, to revise, digest and 
arrange the laws of the State, as required by section 35, of 
article 411, of the Constitution." 

Judge Franklin did not believe that the Governor had the 
power to make the appointment, and promptly declined it ; 
he was not capable of thus violating the law, or of acting 
under such doubtful authority. But the tribute to his 
merits, which the selection imports, is no less conclusive of 
the just estimation in which he was held by all parties 

Judge Franklin was a man of refined social qualities. He 
was tender in his sympathies, warm in his attachments, and 
possessed a charity responsive to every appeal of virtue. 
He was a man of most equable temperament, quiet and 
methodical in all the affairs of life, and pursued the even tenor 
of a philosopher. In his views and sentiments he exemplified 
the best type of early Texas character. He cherished in 
the highest degree the honor of the State, and was devoted 
to its institutions and its people. 

He was married on the 3d of November, 1847, to Miss 
Estelle B. Maxwell, of Kaskaskia, Illinois, who was at that 
time visiting the family of her cousin, Michael B. Menard, 
Esq., of Galveston. This excellent lady still survives him, 
and is now residing in her native town, Kaskaskia. 
12 



178 BENCH AND BAR OF TEXAS. 



RICHARDSON A. SCURRY. 



This eminent member of the early bar and bench of 
Texas was a native of Gallatin, Sumner County, Tennessee. 
His father, Thomas Scurry, was of Scotch descent and a 
lawyer of Gallatin, and is said to have been a man of brill- 
iant intellect, of remarkable memory, fine judgment and 
sparkling wit and humor, which, descending to his son, 
William E. Scurry, a brother of Richard, made him the 
brilliant and engaging "stump speaker" and humorous 
character, well remembered by the older citizens of Texas. 

The mother of Richardson A. Scurry descended from a 
French Huguenot family which fled from France in conse- 
quence of the revocation of the Edict of Nantes, first to 
Eno-land and thence to America, and settled in Viro-inia. 
Her parents soon after their marriage immigrated to the 
unexplored regions beyond the Alleghanies, and she was 
born in a rude fort erected for the protection of the settlers 
against the Indians. She was a woman of noble character 
and intelligence, one fit to be " the mother of sons," and 
was married in 1808. 

Richardson was the eldest of five children. He inherited 
the fine memory of his father and the reflective, philosoph- 
ical mind of his mother. His educational advantages were 
good, and while at school he developed one of those rare 
order of minds in which the truths of mathematics seem 
intuitive. He is said to have mastered the first six books 
of Euclid in three weeks. Having completed a thorough 
collegiate course, he studied law in the oflSce of his 
kinsman — the brilliant and eccentric Judge Guild. He 
possessed a great love for books and a thirst for knowledge, 
which caused hiDa to extend at the same time his researches 



RICHARDSON A. SCURRY. 179 

to the various fields of literature, and he acquired a useful 
store of ojeneral knowledge. 

Soon after he had been admitted to the bar and had 
begun the practice of his profession at Gallatin, the struggle 
of Texas for her independence attracted the attention of 
the country, and kindled a spirit of sympathy throughout 
the Southern States. Fired by this sentiment and a love 
of romance and adventure, young Scurry determined to 
cast his lot with the heroic people of the young Republic, 
and joined a gallant band of young men organized for the 
Texas service. He reached the Texan army two days 
before the battle of San Jacinto, and was made a lieuten- 
ant on the field for gallantry and good conduct. 

When the government of the young Republic was fairly 
organized he settled in San Augustine and formed a law 
copartnership with General Thomas H. Rusk and Colonel 
J. Pinckney Henderson. He soon afterward joined a 
company under General Rusk, organized for the protection 
of the colony against the depredations of the Cherokee 
Indians. This gallant little company, after many adven- 
tures and narrow escapes, succeeded in driving the Indians 
out of Eastern Texas and thus terminating " the Cherokee 
war." 

He was the first district judge elected in the eastern por- 
tion of the Republic, and this position made him ex-officio 
one of the judges of the Supreme Court. At that time it 
was necessary that a Texas judge should be not only a 
clear-headed lawyer and a man of sound judgment, but 
that he should have the courage to form and deliver his 
opinions regardless of danger or threats, and sometimes to 
pronounce judgment with a brace of pistols lying conspicu- 
ously upon his desk. But Judge Scurry was equal in all 
these respects to the demands of his position, and his judg- 
ments were enforced and respected. 

In 1841 he was elected to a seat in the Congress of the 
Republic, then held in the town of Washington, and in 
1844 he was re-elected and was made Speaker of the House 
of Representatives. 



180 BENCH AND BAR OF TEXAS. 

During this year lie met in Washington Miss Evantha 
Foster, who was visiting her cousin, Mrs. Wm. A. Wharton, 
whose husband and his brother, Colonel John A. Wharton, 
were also members of Congress — the former being a mem- 
ber of the House of Representatives, and the latter of 
the Senate. Miss Foster was a "beauty" among the 
belles of the gay little capital, who danced their balls on 
puncheon floors with the gallant young Congressmen and 
ofiicials arrayed in much-worn garments and decorated with 
pistols and top-boots. Judge Scurry and Miss Foster were 
married in 1815. 

Soon after the annexation of Texas to the United States 
he removed to Clarksville, in Red River County, and was 
elected district judge. In 1853 he was elected with Volne}'' 
E. Howard, of San Antonio, as his colleague, to represent 
Texas in the Congress of the United States, and it was in 
vacation during his last term in Congress that an accident 
occurred to him which finally terminated his life. In the 
hurried preparation for a hunt in the early morning, he let 
his gun fall, which, emptying itself, tore away the lower part 
of his foot. A country doctor, wholly without knowledge of 
surgery, amputated it, leaving a wound that never healed, 
and from this time to his death he was a confirmed invalid. 
Having to abandon the practice of his profession, he 
devoted himself to his books. The banking question, 
which was at that time in a state of much confusion and 
perplexity, interested him greatly, and he wrote several 
able articles on the subject which were copied throughout 
the country. 

Judge Scurry was opposed to secession, but believed 
that a war between the States was inevitable. He was a 
devoted Texan and an ardent Southerner, and when the 
bu^le blast rang out calling the South to arms he felt 

c o o 

more keenly than ever the helplessness which forbade his 
response to the call. A colonel's commission was sent him 
by the Confederate government, with orders to raise a 
regiment ; but in his state of health, and being compelled 
to walk with crutches, this was impossible. He addressed 
a letter to his old friend, General Albert Sidney Johnston, 



RICHARDSON A. SCURRY. 181 

stating his condition, and asking him if there was anything 
a cripple could do in the defense of his country. General 
Johnston requested him to repair to his headquarters at 
once, and offered him the position of Adjutant-General on 
his staff. A physician and friend persuaded him to have 
his leg amputated, assuring him that he would then soon 
recover his health; and in his impatience to join General 
Johnston, he would not wait for chloroform to be procured, 
which was then scarce and difficult to be obtained, but 
caused the amputation to be made at once, which he bore 
with the fortitude of a martyr. His vital powers gave 
way under the tremendous strain of the operation, and he 
died on the 3d of April, 1862. 

His death was greatly lamented throughout the State, and 
the most impressive tokens of respect were payed to his 
memory which those exciting times permitted. General 
Houston, on bearing of his death, said : " There died one 
of the most wonderful minds I have ever known. It was a 
vast store-house of legal lore." He was truly an able 
lawyer and an excellent judge, and his career was elevating 
to the bench and bar of the Republic and State. His per- 
ceptions were clear, his judgment was based upon sound rea- 
son, and his memory was remarkable. It is said that while 
practicing in copartnership with General Rusk and Colonel 
Henderson, whenever a difficult question arose, requiring 
reference to numerous authorities, they would entrust the 
matter to his memory, and he would without hesitation cite 
the authors, volumes and chapters desired. 

In society Judge Scurry was quiet and sedate, taking but 
little part in the ordinary surface play of conversation ; 
but when a proper subject for discussion was touched, his 
extensive knowledge and command of language impressed 
his listeners with the correctness of his judgment and the 
wisdom of his views. He held the wand of suasion with a 
masterly hand, and charmed his hearers with copious and 
interestino^ illustrations drawn from his extensive reading. 

In the dawn of her history Texas had many bright minds 
and patriotic spirits, which gave strength to her councils, 



182 BENCH AND BAR OF TEXAS. 

valor to her arms, wisdom to her laws, and grace to her 
character; but there are but few to whom in these respects 
she owes more than to the two Scurrys. Their names, with 
those of the two Jacks, the two Whartons and others, will 
always reflect much of the brightness and glory of the 
Republic and State along the path of history, throughout 
the corridors of after time. 



WILLIAM S. TODD. 183 



WILLIAM S. TODD. 



The subject of this sketch was born in Caroline County, 
Virginia, in the year of 1808. His father, George T. 
Todd, was the son of a Scotch physician, who, with several 
brothers, emio-rated to Virginia soon after the Revolution- 
ary struggle, one of whom was the ancestor of Mrs. Abra- 
ham Lincoln. He was the wealthiest man in Caroline 
County, and lived to the extreme age of ninety years. 
William S. Todd was a young man of talent and ambition, 
and while young represented his county in the Legislature 
of Virginia. He removed to Texas in 1843, and located at 
Boston, in Bowie County, but soon afterward removed to 
Clarksville. In 1850 he was elected judge of the Eighth 
District, and organized the first courts held in the counties 
of Cooke, Hunt, Collin and Grayson. He held the position 
of district judge until 1862, when he retired from the 
bench and settled at Jefferson, where he died in 1864. 

Judge Todd was a member of the convention of 1861, 
and signed the ordinance of secession. His whole heart was 
enlisted in the Southern cause, and it is well, perhaps, that 
he did not live to witness the destruction of his hopes and 
the overthrow of the principles which he had so long cher- 
ished and so ably advocated. 

Before he left Virginia he was married to Miss Eliza A. 
Hudgins. She was the daughter of Thomas D. Hudgins, a 
planter of Mathews County, who died in Richmond in 
1862. She was a highly educated and accomplished lady, 
and was loner an interestins; contributor to the N'orthern 
/Standard, at that time the leading paper in Northern Texas. 
She was a noted teacher, and conducted a flourishing school 
first at Boston and then at Clarksville, to the time of her 
death. 



184 BENCH AND BAR OF TEXAS. 

Judge Todd was a thorough lawyer and an excellent man. 
He had applied himself to the study of law with all the 
vigor and assiduity which a love of the profession inspires, 
and his success was the sure reward of ability and merit. 
His career as a judge was elevating to the bench, and 
adorned the judicial ermine of the State ; and the author 
regrets that he has not been able to obtain more information 
in regard to his personal traits and the incidents of his 
early life. 



CHAPTEK yi. 



THE BAR OF THE REPUBLIC AND STATE — EMI>fENT LAWYERS, DECEASED — 
J. PINCKNEY HENDERSON — R. M. WILLIAMSON — WM. H. JACK — JAMES 
WEBB — ^^EBENEZER ALLEN — JAMES WILLIE — O. C. HARTLEY — THOMAS 
H. JENNINGS — JOHN A. WHARTON — E. M. PEASE — JAMES W. DALLAM — 
W. S. OLDHAM — H. P. BRKWSTER — THOMAS M. JACK. 



James Pinckney Henderson. 



This distiniruished lawyer, soldier and statesman was born 
in Lincoln County, North Carolina, on the 31st of March, 
1809, and descended from an ancient and honorable family 
whose name is prominent in the early history of that State. 
His early educational advantages were good, and he was for 
several j^ears a student at the University of the State at 
Chapel Hill. He studied law and was admitted to the bar be- 
fore he was twenty-one years of age. He was an ambitious 
young man, and was endowed with a brilliancy of intellect 
which early gave promise of a distinguished career. While 
preparing for the bar he studied with the most intense ap- 
plication, and often told his friends in after life that during 
that period he devoted eighteen hours a day to his studies. 
This injudicious taxation of his powers induced a constitu- 
tional Aveakness from which he never recovered. At the 
iige of twenty-two, he was appointed aid-de-camp, with 
the rank of major, to Major-General Dorrett, of the North 
Carolina militia, and was afterwards elected colonel of a 
regiment. 

In the fall of 1835, Colonel Henderson removed to Mis- 
sissippi, and, having settled at Canton, began the practice 

(1S5) 



186 BENCH AND BAR OF TEXAS. 

of law with the brightest prospects of success. But he 
had scarcely tested the opportunities offered him in this new 
field before his attention was attracted to the strug-g-les of 
the province of Texas to throw off the oppressive and de- 
grading yoke of Mexican rule. His sympathy was at once 
enlisted in the cause of the patriots who had hoisted the 
banner of liberty and the Lone Star, and he determined to 
devote his energies to their interest. Judge Foote, who 
was at that time a prominent lawyer and politician in 
Mississippi, in referring to a speech which he made 
to an assembly of Texas sympathizers at Canton, in the 
spring of 1836, thus describes Colonel Henderson at that 
period : — 

" When I stepped down from the rostrum it was grace- 
fully ascended by a young gentleman whom I had never 
seen before. The person of that young gentleman was 
noble and commanding; his voice presently proved itself to 
be both strong and musical ; his eyes and whole counte- 
nance Hashed forth the lio-ht of commingled thouo-ht and 
passion. That young orator swept the audience before 
him like a whirlwind. 'Who is he?' exclaimed many 
voices, and the response was,- 'That is Mr. Henderson, a 
young lawyer of uncommon promise, and of easy fortune, 
who has just emigrated from North Carolina and settled 
among us.' To the honor of Madison County, be it said 
that several thousand dollars were at once subscribed, and 
various young men resolved to go forth to the rescue of 
their brethren in Texas. I was soon introduced to General 
Henderson (for by such title is that young orator now dis- 
tinguished). I spent a day in his society, and have never 
seen him since. Next morning he started to Texas." 

Soon after his arrival in Texas, Colonel Henderson was 
commissioned by President Burnett to return to the United 
States and recruit for the Texan army. He proceeded to 
his old home in North Carolina and raised a company which 
he transported to Texas at his own expense. He returned 
in November, 1836, and was immediately appointed by 
President Houston Attorney-General of the Republic, and 
in December following he was made Secretary of State, to 



JAMES PINCKNEY HENDERSON. 187 

fill the vacancy in that office occasioned by the death of 
Stephen S. Austin. 

Early in the year of 1837, Colonel Henderson was sent 
as Minister Plenipotentiary and Envoy Extraordinary from 
the Republic of Texas to the courts of France and England. 
He was commissioned to solicit the recognition of the inde- 
pendence of Texas by these Powers, and was invested with 
plenary powers, as ambassador, to conclude treaties of 
amity and commerce with them. His mission w^as success- 
ful. Both of these Powers soon recognized the independ- 
ence of the Republic and entered into cordial treaty 
relations with the new nationality. His eminent talents and 
noble bearing, and the fidelity and ardent zeal with which 
he urged the claims of his country to a place among the 
nations engaged for himself a warm personal consideration, 
and it was not for Thucidides in his elegant delineations of 
the events which preceded the Peloponesian war to describe 
a more patriotic embassy than that of Colonel Henderson 
to the courts of England and France. His appeals for the 
recognition of that independence which his country had so 
nobly achieved, fell in stirring strains upon the proud ears 
of the great statesmen and diplomatists who at that time 
adorned the courts of St. Cloud and St. James. He was 
greatly indebted to the kind services of General Cass, the 
American Minister at Paris, w^hich greatly aided him in ac- 
complishing his mission to France. He introduced him as 
a younger brother to the nations, and he was looked upon 
in Paris as a new apparition of American glory — as another 
Franklin, fresh from the cradle of liberty. 

In 1840, Colonel Henderson returned to Texas, and was 
welcomed by a universal outburst of applause and the 
w^armest congratulations of his countrymen. A grand 
dinner was given him at Galveston, and demonstrations of 
public gratitude and esteem were tendered him by several 
other towns, Avhich he modestly declined. At the expira- 
tion of General Lamar's Presidential term, he was strongly 
urged to become a candidate for the Presidency of the 
Republic ; but being somewhat under the constitutional age 
required for that office, he promptly declined the can- 



188 BENCH AND BAR OF TEXAS. 

didacj, declaring that he would not violate the Constitution 
and laws of his country, though no one but himself should 
be cognizant of the fact. He would not thus incur the 
reproach of his own conscience and the condemnation of 
his own heart. 

History furnishes but few more striking exhibitions of 
disinterested patriotism and personal rectitude. Cincinnatus 
retiring to his plow-share, Regulus advising his country- 
men as to their best interest and returnino; to Carthage in 
compliance with his oath, Epaminondas asking his judges 
but one favor, that his patriotism be inscribed upon his 
tomb, present themselves as parallel instances. 

Col. Henderson now settled at San Augustine and resumed 
the practice of his profession ; but in 1844 he was sent by 
his government to Washington as Minister Plenipotentiary 
to act in concert with Mr. Van Zandt, the Texan Charo;e 
d' Affairs in negotiating a treaty for the annexation of 
Texas to the United States. Mr. Calhoun, Avho was then 
Secretary of State, favored their cause, and they had but 
little difficulty in accomplishing their object. The treaty 
was at first, however, rejected by the United States, but 
through the exertions of the Texan Ministers and their 
friends in Congress, it was subsequently ratified. 

In June, 1845, he was elected one of the members from 
San Augustine County to the Convention which framed the 
Constitution of the new State, and his debates in that body 
are still highly interesting. He was an active and influen- 
tial member and his views were largely impressed upon the 
admirable organic law which has conferred honor and 
prosperity upon the State. 

In November, 1845, he was elected Governor of Texas, 
for which his knowledge of the spirit of the Constitution 
and its mission rendered him peculiarly suitably, and his 
thorough knowledge of law and discrimination of character 
enabled him to select that talent and judicial capacity for 
the Texas bench which glorified the beginning of its 
jurisprudence. 

His message to the first Legislature was plain, simple and 
brief, as if he did not wish to burden that body with the 



JAMES PINCKNEY HENDERSON. 189 

consideration of questions wliich might in anywise impede 
the smooth start of the new machinery of government or 
clog its incipient movements ; yet he was urgent for the 
advancement of those matters which form the great and 
vital interest of every free community. In reference to 
the promotion of public justice and popular education, he 
said : — 

" The prosperity, happiness and permanence of every 
government like ours, where all authority is derived from 
and exists at the will of the people, greatly depends upon 
the intelligence and moral and religious character of its 
citizens. That prosperity, happiness and permanence can 
be best secured to ourselves and posterity by making liberal 
provisions for the education of the rising and future genera- 
tions. By the Constitution it is made the duty of the 
Legislature to make suitable provision for the support of 
public schools, and to set apart not less than one-tenth of 
the annual revenue of the State as a perpetual fund for that 
purpose, and as soon as practicable to furnish other means 
for the support of free schools throughout the State by 
taxation. The slow progress made by most of our sister 
States in collecting a sufficient fund for educational pur- 
poses and maturing plans for public schools, should warn 
us of the necessity of commencing that important work 
with our earliest existence as a State. The people of no 
State have ever yet had occasion to regret the munificence 
of their Legislature upon this subject, when proper care 
has been taken to establish a good sj^stem of public in- 
struction, and to insure a prudent management of the means 
appropriated. 

" Some confusion will necessarily be produced in our laws 
by our change of government from an independent repub- 
lic to a State of the Union. Obscurities have already been 
introduced into many of our laws by the frequent changes 
and amendments which have been made or attempted by 
the Legislature. Our Constitution requires you to provide 
for a revision of our civil and criminal laws. The interest 
of the State, it seems to me, requires that it should be done 
as soon as practicable, and I therefore recommend it to 



190 BENCH AND BAR OF TEXAS. 

your especial consideration. A faithful and rigid adminis- 
tration of the criminal laws of every State is necessary ; 
the public peace, safety and morals demand it. 

" Economy in the administration of the government is 
always becoming to the agents of the people — with us it 
is absolutely necessary. As far as my actions are con- 
cerned, as the chief executive officer of the State, I can 
promise a strict observance of that duty, doubting not that 1 
shall find in you, as the representatives of the people, a 
corresponding disposition. 

" I commend you, gentlemen, to God's holy care, with a 
full reliance upon His bountiful providence for the pros- 
perity of our infant State. As He has conducted us 
through all our dangers and troubles to the desired haven, 
so will He enable us to ride there in safety. He will keep 
us in the right path and point out the way in which we may 
perpetuate our free government." 

These sentiments, falling upon the ears of patriotism, 
impressed themselves upon the early policy of the State, 
and his executive influence was as propitious as his legisla- 
tive and diplomatic services had been valuable. 

But it was not long before he was called upon to serve 
his country in another sphere. When the bill providing 
for the annexation of Texas passed the United States 
Congress it was evident that war with Mexico was inev- 
itable. The Mexican Minister at Washington demanded 
his passports and left the country, and a Mexican army im- 
mediately crossed the Rio Grande. Texas was called upon 
to furnish four regiments of volunteers. They were soon 
organized, and Governor Henderson was Authorized and re- 
quested by the Legislature to take command of the new 
regiments of Texas troops ; but at the time of their de- 
parture for the seat of war he was confined to his bed. A 
week later he started in a carriage, without an escort, 
though it was necessary to pass in close proximity to a 
large body of Mexican troops, and safely joined the United 
States army. On the third day of the battle of Monterey 
he led the Second Texas regiment in person, and during 
the attack was cut off from his men while reconnoitering, 



JAMES PINCKNEY HENDERSON. 191 

and was compelled to crawl upon his hands and knees, as 
Bonaparte did at Vienna, in order to reach his command. 
Hon. Jefferson Davis, whose command was near that of 
General Henderson, in describing this circumstance, says: — 

"On the third and last day of the attack, when night 
was closing around us, and we were near to the main plaza, 
we learned that we were isolated ; that orders had been sent 
to us to retire ; that the supports had been withdrawn, and 
that we were surrounded by a large number of the enemy. 
A heart less resolved, a mind less self-reliant than Hender- 
son's might have doubted, wavered, and been lost. The 
alternative was presented to him of maintaining a post 
which he was confident we could not hold, or of retirins:, 
when it was doubtful whether we could cut our way through 
the enemy: he asked no other question than, 'Are we 
ordered to retire ! ' On learning that such was the fact, he 
decided, at whatever hazard, to obey ; and narrowly on 
that occasion escaped with his life. The sense of duty 
rose with him superior to all other considerations ; and he 
obeyed an order which he might have been justified in dis- 
obeying, because of the dangers to which it would subject 
him." Again says Mr. Davis: " He was gentle as a lamb 
in the hour of peace and in the midst of his friends ; but 
bold as the lion in the face of danger, and when confronted 
by an enemy." 

He was one of the commissioners appointed by General 
Taylor to negotiate with General Ampudia for the surrender 
of Monterey, and for his services in that battle Congress 
voted him a sword. He was soon after appointed a major- 
general in the army of the United States, and was therefore 
entitled to the pay of that office as well as his salary as 
Governor of Texas ; but so high was his sense of honor 
and probity in the discharge of public duties, that he de- 
clined to accept a dollar of his salary or any compensation 
from Texas while he held his position in the United States 
army. After the close of the war he resigned his commis- 
sion in the army and resumed his duties as Governor of 
Texas ; and at the expiration of his term, declining a re- 
nomination, he returned to the practice of his profession, 



192 BENCH AND BAR OF TEXAS. 

which he continued until 1857, when, upon the death of 
General Rusk, he was almost unanimously chosen his suc- 
cessor in the United States Senate. He accepted the posi- 
tion with reluctance. His health had become feeble. He 
felt that his life was drawing to a close, and he desired to 
spend his last days in the quiet of retirement, but he yielded 
again to the general voice of the people. In deference, 
however, to the entreaties of his friends he delayed his de- 
parture for the Federal capital. His health continued to 
decline; but, impelled by an unswerving sense of duty and 
a desire to be upon the field of his labors, he undertook the 
journey, and, having tarried a short time amid the orange 
groves of Cuba, with painful exertion he reached Wash- 
ington and took his seat in the Senate. But he occupied it 
only a few days before a fatal reaction ensued, and his spirit 
passed away in the midst of admiring and sympathetic 
friends. 

While in Paris he met Miss Frances Cox, daughter of 
Mr. John Cox, of Philadelphia, who was residing in Paris 
for the purpose of educating his daughters, and they were 
married in the city of London in 1839. She was a lady of 
fine intellectual and social accomplishments, and was highly 
esteemed by the citizens of San Augustine, where she long 
resided. 

General Henderson was par excellence one of the finest 
lawyers that ever adorned the bar of Texas, and he would 
have been an ornament to any bar in any age or country. 
He was distinguished for his mental vigor, clear and pene- 
trating perception, and for the accuracy and perspicuity of 
his reasoning. He had mastered the fundamental principles 
of the common law, and his varied and extensive practice 
endowed him with an accomplished experience in all the 
branches of jurisprudence, which commanded the greatest 
success — the best proof of his ability and professional 
excellence. 

He was a man of high sense of honor, and held veracity 
as one of the most sacred qualifications in every capacity of 
life. It is said of him that, while negotiating with the 
French court for the recognition of his country, an event 



JAMES PINCKNEY HENDERSON. 193 

upon which the fate of Texas depended, he was asked what 
the population of his country was, and being ashamed to 
say what he thought it was, and unable to prevaricate even 
in the deceitful field of diplomacy, he appealed to a French 
nobleman, who was a friend of Texas and had just re- 
turned from that Republic, who promptly replied that the 
population was about a million. The French courtiers, 
though astonished at the response, were too polite to ques- 
tion the accuracy of the statement, and the population of 
Texas, which at that time did not exceed perhaps fifty 
thousand, was put down in diplomatic figures about a 
million. 

As a statesman and patriot, his qualities glowed with 
equal lustre, and his name will ever glitter in the annals of 
Texas in glaring association with its youthful glory, and 
will be handed down to the last corridor of time as that of 
a man of great probity, courage, and talent, which he de- 
voted to the service of his country, the elevation of his 
profession and his fellow-man. 



194 BENCH AND BAR OF TEXAS. 



ROBERT M. WILLIAMSON. 



Robert M. Williamson, one of the most eminent of the 
early Texas lawjers, was born in the State of Georgia, 
about the year 1806. His educational advantages were 
such only as the common schools of that period afforded, 
and these opportunities were arrested when he was but fif- 
teen years of age by an attack of white swelling which con- 
fined him to his bed for two j^ears and rendered him a crip- 
ple for life. The disease stiffened the joint of his knee and 
and made it necessary for him to wear a wooden leg, which 
caused him to be widely known as " three-legged Willie." 
He was, however, a bright and ambitious boy, and, during 
his confinement, devoted himself to the study of mathe- 
matics and the languages, his knowledge of which was ex- 
celled by but few of his cotemporaries. 

At an early age he prepared himself for the bar, to which 
he was admitted at the age of twenty-one years. He 
entered at once upon the practice of his profession, and 
acquired a large business and a wide professional reputa- 
tion. But in consequence of an unfortunate event, which 
reflected upon him no discredit, he determined to seek a 
home in the wilds of Texas ; to which he emigi;ated about 
the year 1826 and located at San Felipe. Here he soon 
mastered the Spanish language, and, having acquired a thor- 
ough knowledge of the land laws of Spain and Mexico, en- 
tered upon a successful professional career. He became the 
adviser and confidential agent of the famous Benjamin R. Mi- 
lam and contributed largely to the successful fulfillment of his 
colonial contracts. He was also a warm friend of the two 
Jacks, the Whartons, Col. Frank Johnson and other con- 
genial spirits of the liberal party, whose patriotic efforts, 
even at that early day, foreboded the dawning independence 



ROBERT M. WILLIAMSON. 195 

of Texas. He devoted his energies to the accomplishment 
of a final separation of Texas from Mexico, and so active 
and energetic were his efforts in this respect that he became 
especially obnoxious to the Mexican government. In the 
affair at Turtle Bayou and in all the incipient steps which 
led to the revolution, as well as during its progress, he acted 
a prominent and efficient part. He raised troops, aroused 
the colonists to a sense of their wrongs, and commanded 
a company of cavalry stationed at Bastrop, where he 
rendered efficient service in protecting the frontier. Mr. 
Yoakum, the author of a history of Texas, says: " After 
a thorough and minute investigation of the records and his- 
tory of Texas I am constrained to say, that Robert M. Will- 
iamson did as much, if not more, than any other man in 
precipitating and sustaining the revolution of 1835. 

Upon the organization of the judiciary of the Eepublic 
in 1836, Williamson was selected to fill the position of judge 
of the Third Judicial District, and changed his residence to 
the town of Washino;ton. The task of establishino- rules 
of judicial procedure in the midst of a people who had 
recognized no law but the strong arm of military power, 
and of eliminatino; order out of the discordant elements of a 
revolution was difficult, and requii'ed the utmost firmness and 
prudence. But Judge Williamson was equal to all the de- 
mands of his position, and, having set the machinery of 
justice into a smooth and regular motion, he retired from 
the bench and resumed his practice at the bar. 

In 1840 he was elected to represent Washington county 
in the Congress of the Republic and held this position by 
re-election until 1845, when he was elected to a seat in the 
Legislature of the State ; and with the exception of one 
term, served in one or the other branches of that body until 
1850, and never resumed his practice. The exciting events 
of the period of his political career engaged his energies and 
led his mind into channels of thought and into habits in- 
compatible with the jealousy of law, and the bar lost a 
brilliant genius. 

In 1850 he was a candidate for Congress and was defeated 
by a few votes by Volney E. Howard, upon which he re- 



196 BENCH AND BAR OF TEXAS. 

tired to a small farm near Independence, in Washington 
County. In 1857, he had a severe attack of sickness, 
which seriously impaired his mind, and which was aggra- 
vated by the death of his wife which occurred shortly 
afterward. From these combined shocks neither his health 
nor his mind ever recovered, and he died on the 22d of 
December, 1859. 

Judge Williamson was a man of brilliant talents and an 
able lawyer, and his knowledge of law was due perhaps 
more to his genius than to any steady or prolonged appli- 
cation. His comprehension was intuitive. The flashes 
of his intellect illumined every subject upon which his mind 
rested, and he grasped the merits of a case with an avidit}^ 
which no subtlety of combination could parry, and no speci- 
ousness of reason could evade. He was a man of remarkable 
force of character and of dauntless courage, and possessed 
great influence over the sympathies and passions of the 
varied elements which characterized the society of the 
Western border. His generous, unselfish spirit, and 
amiable manners captivated the people, and they idolized 
him. 

As an orator, he was the Patrick Henry of Texa.s, and, 
like him, his oratory was of that kind which stirred the 
heart while it swayed the mind of his audience. He was 
one of the few lawyers of whom it may be said that a 
natural eccentricity, and an. overweening propensity for 
ludicrous quaintness and badinage never impaired the most 
implicit faith in his sincerity, nor weakened the force of his 
gravest argument ; but, on the other hand, the force of his 
wit was blended with the power of wisdom. It was not 
with him, as Dr. Johnson says of Shakespeare, an irrecon- 
cilable fondness for "a mere quibble which allured him 
from the dignity and profundity of his disquisitions," nor 
the "Cleopatra for which he lost the world, and was con- 
tent to lose it," but it was the aroma which sprung from 
the blossoms of his genius. 

With such a blending and adjustment of pre-eminent 
qualities and gifts, the career of Judge Williamson f.Mshes 
like a meteor across the early annals of Texas ; and, had it 



ROBERT M. WILLIAMSON. 197 

been cast in the midst of more favorable circumstances, 
would, no doubt, have adorned the jurisprudence of the 
State . 

Though dwelling in the midst of speculation and easy 
opportunities for the acquisition of independence and 
wealth, he seems to have had no desire for the accumula- 
tion of property. His generous and improvident disposi- 
tion precluded him from the paths of economy, and he 
often felt and endured the pecuniary embarrassment and 
domestic straight which Juvenal calls I'es angusta domi. 

While Judge Williamson was noted for his sudden flashes 
of wit and pleasing humor, he was much addicted to spells 
of melancholy, which foreboded the mental infirmity to 
which he became a victim. But he was always kind and 
courteous in his demeanor, and took a paternal interest in 
the young men at the bar, extending to them at every op- ] 
portunity a helping hand and kind words of encouragement. L 
He had but one fault, one which often pervades the pur- / 
lieus of professional eminence, but it was lost in the train / 
of his virtues. 



198 BENCH AND BAK OF TEXAS. 



WILLIAM H. Jack. 



William Henry Jack was born in Wilkes County, Georgia, 
on the 12th of April, 1806. His father, Patrick Jack, was 
for several years a prominent member of the Leo^islature of 
Georgia, and commanded a regiment during the war of 
1812. His grandfather was Captain James Jack, of Char- 
lotte, North Carolina, who bore on horseback the famous 
Mecklenburg Declaration of Independence to the Colonial 
Convention at Philadelphia, and who subsequently com- 
manded a company in the war for independence. 

The educational advantages of William H. Jack were the 
best that the schools of the period afforded, and, having 
graduated with honor at the University of Georgia, and 
prepared himself for the bar, he removed to Tuscaloosa, 
Alabama, and began the practice of his profession. In 
1828 he represented Jefferson County in the Legislature of 
Alabama, and in 1830, actuated by a spirit of enterprise 
and adventure, he removed to Texas, and located at San 
Philipe de Austin, which was at that time the professional 
and political metropolis of the Province, and a place of 
much business activity. 

Here Mr. Jack entered zealously upon the pursuit of his 
profession with every prospect which energy, culture and 
thorough trainino; could offer. But in 1832 an event 
occurred which led him to turn his attention to political 
affairs, inspired him with new aims and gave a new color to 
his life. His brother, Patrick C. Jack, William B. Travis 
and Monroe Edwards having incurred the displeasure of 
Col. Bradburn, the commander of the Fort of Anahuac, 
were arbitrarily arrested and imprisoned by the command 
of that officer. Mr. Jack immediately proceeded to the 
fort for the purpose of ascertaining the nature of the 



WILLIAM H. JACK, 199 

offense, if any, with which the prisoners were charged, and 
either to secure their release or obtain a trial for them 
before the civil authorities. But Bradburn treated the 
object of his mission with contempt, and informed him that 
the prisoners would be sent to Vera Cruz and tried by a 
military court. Well knowing what would be the result of 
this proceedinof, he returned with a sad heart to San Philipe, 
and havino; assembled some of his friends, announced to 
them the circumstances and result of his visit to Anahuac. 
Resistance was determined upon, and he was sent out to arouse 
the colonists to a sense of their wrongs, and promote meas- 
ures of defense. In the meantime the news of the arrest 
of the three citizens spread rapidly, and caused great 
excitement among the colonists upon the Brazos and Trinity, 
and in other sections. Volunteers assembled from all the 
settlements, and were organized under the command of 
Francis W. Johnson. The relief proceeded at once towards 
Anahuac, but finding that Bradburn was being supported 
and reinforced by the commander of the post of Velasco, 
they determined to attack that fort immediately. Velasco 
was taken, Bradburn released his prisoners, and abandoned 
the fort of Anahuac; and thus began the opening campaign 
of the Texas Revolution. 

Mr. Jack was the author of the "Turtle Bayou Resolu- 
tions," adopted during their expedition against Anahuac, 
which, while they declared the fidelity of the colonists to 
the Mexican Constitution, demanded in unmistakable terms 
the rights and liberties of the people, and was the first 
public remonstrance of the Texans against Mexican oppres- 
sion. 

During the war which followed he acted a conspicuous 
part, and was devoted to the cause of Texas independence. 

In 1835 he Avas a member of the Committee of Safety for 
the jurisdiction of Columbia. He had no turn or ambition 
for military rank. He was a private trooper in the com- 
mand that captured Goliad, and fought in the ranks 
in the battle of San Jacinto. After the close of the 
war he was appointed Secretary of State by President 
Burnet. In 1836 he was elected to a seat in the Conirress 



200 BENCH AND BAR OF TEXAS. 

of the Republic, and was chairman of the judiciary com- 
mittee. He served in that body continuously until the year 
1844, when, having contracted the yellow fever while on a 
visit to Galveston, he died with that disease in Brazoria 
County, on the 20th of August, 1844, a few days after the 
death of his brother, Patrick, who died in Houston with 
the same malady. 

Mr. Jack was a distinguished lawyer of his day, and con- 
sidered one of the ablest at the Texas bar ; and had his life 
been spent in more settled times, in the midst of peaceful 
pursuits and under a well organized jurisprudence, his pro- 
fessional record would have been eminent. Thoroughly 
educated and well versed in fundamental principles, he pos- 
sessed the qualities of an able advocate and the qualifica- 
tions of a great lawyer. These consisted of a combination 
of learning, noble traits of character and tine social accom- 
plishments. He was a man of fascinating manners, mild 
and forbearing in his intercourse with the many reckless 
and uncouth characters of the country, with whom his pro- 
fessional business brought him in contact. He was a forci- 
ble and graceful orator. He possessed a laclea uhitas of 
diction and the vox argentea, so highly commended by Cicero. 
He was selected by his countrymen to deliver the address of 
congratulation and welcome upon the return of General 
Austin from Saltillo, where he had for two terms repre- 
sented his people in the Legislature of the State of Coa- 
huila and Texas. In this speech, Mr. Jack, in addressing 
the father and founder of Texas, said : — 

" Such a boon, then, as is due to him who has faithfully 
discharged his duties, we grant you, with an assurance that 
the man whom the people have delighted to honor, still 
has our most unbounded confidence. The occasion of your 
most unexpected return to Texas will be long remembered. 
The present is an epoch in the political affairs of our 
country on which the pen of the historian will dwell with 
peculiar pleasure. In conclusion, I can not, perhaps, 
better express my own feelings and those of our common 
countrymen than by saying: Well done, good and faith- 
ful servant; thou art welcome, thrice welcome, to thy home 



WILLIAM H. JAClf. 201 

and to thy friends ; and may health and happiness always 
attend thee ! ' ' 

Cut off in the meridian of a useful life, the death of 
William H. Jack was a great loss to his country, and had 
he lived the allotted time of man his talents and patriotism 
would have added new embellishment to the days of an- 
nexation and to the bar of the State of Texas. 



202 BENCH AND BAR OF TEXAS. 



James Webb. 



This eminent lawyer and good man was born in Fairfax 
County, Virginia, in the year 1792. He was well educated 
and was admitted to the bar in his native State, but soon 
afterward removed to Jones County, Georgia, where he 
practiced his profession with distinction and success. He 
subsequently settled at Webbville, in Florida, a place 
named foi him, on the Chipola river. Here his eminence 
as a lawyer became so distinguished that he was appointed 
judge of the United States Court for the district of Florida 
and held his courts at Key West and Tallahassee. 

In 1838 he removed to the Eepublic of Texas and located 
at Houston, but soon afterward settled at Austin. He was 
Secretary of State and Attorney-General under the admin- 
istration of President Lamar, and was sent by him in 
company with General Barnard E. Bee as Minister and 
Agent to the City of Mexico. In 1841 he was elected to 
the Senate of the Republic and was re-elected to the three 
succeeding Congresses, in which he was chairman of the 
Judiciary Committee of the Senate and a member of the 
Committee on Foreign Relations. 

I In 1840 he returned to the bar and practiced in copart- 
nership with Judge F. A. Morris, and afterward with Judge 
W. S. Oldham. He was an active worker in the cause of 
annexation and, while not a member of the Convention of 
1845, he assisted in framing the articles of confederation 
between Texas and the United States. On the organization 
of the judiciary of the State in 1846, he was appointed 
judge of the Fourteenth Judicial District, and held that 
position at the time of his death, which occurred on the 
1st of November, 1856, while on his way to hold court at 
Goliad. 



JAMES WEBB. 203 

The author regrets that in consequence of the loss of 
family papers and records he has not been able to obtain 
more information in reo^ard to the early life of this ac- 
complished lawyer. Prodigal with learning and research, 
he had no superior at the Texas bar, and was the most able 
district judge of his time upon the Texas bench. 

In the case of the State v. Jones, 18 Texas, 874, tried 
before him in the District Court, in which he decided that 
in prosecutions for misdemeanors incurring only a pecuniary 
j&ne the case may be submitted to the court upon an agreed 
statement of facts as in civil cases, and that the overseer 
of a road can not be held liable for failure to repair a road 
within an incorporated town, on appeal being taken. Chief 
Justice Hemphill ordered his opinion in the District Court 
to be incorporated in the transcript and published as the 
opinion of the Supreme Court. This was certainly a hio-h 
compliment, and is the only instance of the kind within 
the author's knowledo;e. 

Above his last resting place in the cemetery at Goliad, 
rises a marble shaft, erected by his noble and affectionate 
daughter, Mrs. Mott, of Galveston, upon which are inscribed 
on one side, the simple words: — 

" James Webb, died November 1st, 1856, aged 64 
years;" and on the opposite side, the plain, touching line: 
" Sacred to the memory of my father." 

Thus oftentimes lives the only story of departed worth ; 
but Judge James Webb needs no monumental trophies or 
storied inscriptions to perpetuate his memory; it lives 
upon the pages of the history and jurisprudence of his 
country. 



204 HENCH AND liAIi OF TEXAS. 



EBENEZER ALLEN. 



Ebenezer Allen, a gentleman prominent among those who 
adorned the early jurisprudence of Texas, was a native of 
Maine, and having attained an excellent education, was 
admitted to the bar in that State. He emigrated to Texas 
during the early period of the Republic, and, being an 
able lawyer, was made Attorney-General under the second 
administration of President Houston, and filled the same 
office during the Presidential term of Anson Jones. In 
1849 he was elected Attorney-General of the State, and 
served in that capacity during the administration of 
Governor Bell. 

His eminence as a lawyer, and his efficiency as the counsel 
of the State were amply verified by the prolonged demand 
for his talent. He was also an accomplished diplomatist, 
and acted a prominent part in the negotiations which led to 
the annexation of Texas to the Union. While serving as 
Attorney-General under President Jones, he performed also 
the duties of Secretary of State, and conducted an import- 
ant and interesting correspondence with Mr. A. J. Donelson, 
the Minister of the United States to the Texas Republic. The 
following characteristic letter is illustrative of the events 
immediately preceding the annexation, and its conse- 
quence — the war with Mexico : 

" Department of State, 
<' Washington, Texas, May 19, 1845. 

" The undersigned, Attorney-General of the Republic of 
Texas^ charged ad interim with the direction of the Depart- 
ment of State, respectfully invites the attention of the 
Hon. Mr. Donelson, Minister Charge d' Affairs of the 
United States, near this Government, to the following con- 



EBENEZEU ALLEN. 205 

sideratious respecting the interests of the two countries, 
whether viewed in the existing attitude of their mutual 
relations, or in that of their probable and prospective con- 
nection. 

" It can not have escaped the notice of the Hon. Mr. Donel- 
son, that, from the tenor of the late communications of 
General Almonte to the President of the United States, when 
demanding his passports as Minister Plenipotentiary and 
Envoy Extraordinary of the Government of Mexico, Texas 
is still claimed by the latter as one of its departments, and 
that belligerent measures are threatened to maintain this 
claim; also, that from the newspaper accounts of the 
termination of all diplomatic intercourse with the American 
Minister at Mexico, the same belligerent attitude is mani- 
fested by a circular alleged to have been addressed to the 
representatives of England and France at that court. 

" From the tone of these manifestoes, a new invasion of 
the territory of Texas may reasonably be apprehended if 
the proposals lately received from the United States for the 
annexation of Texas to the Federal Union should be 
accepted by Texas ; of which result the sure indications of 
the popular will, exhibited from the various positions of the 
Republic, present to the mind an assurance so strong as to 
challenge conviction, and leave scarcely a possible room for 
doubt. 

" For the reasons suggested, the undersigned deems it his 
duty to respectfully inquire of Mr. Donelson whether, 
under such circumstances, calculated to excite the reasonable 
apprehensions of the people of Texas, and especially to 
disturb the tranquility of the settlements along her western 
frontiers, it would not be alike proper and consistent for 
the United States to extend its protection to this Republic? 

" The people of Texas would regard the presence of the 
requisite force on their frontiers in no other light than as 
an act of justice and friendship, properly accorded during 
the pending of the measures in progress for annexation, 
and as an indication of the aid justly due them in the com- 
pletion of the constitutional steps yet necessary to their 
admission into the Union. 



206 BENCH AND BAR OF TEXAS. 

"The performaace of the conditions required by the 
United States of Texas, in acting upon the terms of over- 
ture for annexation, necessarily subjects the people of this 
Republic to very onerous expenses, the burthen of which 
operates with far greater severity in consequence of the 
non-payment of the sums due to this Government from the 
United States for claims arising in the cases of Snively and 
the collectoral district of Red River. 

" The undersigned can not for a moment entertain the be- 
lief that the United States will require that Texas shall 
alone sustain these burthens ; and especially in the event of 
a renewal of the war by Mexico," that this Republic will be 
expected to bear exclusively its burthens ; since, in reality, 
such a war would be hastened and occasioned by the acts, 
and aimed at the interests no less of the United States than 
of Texas. 

*« To this subject the undersigned has, by direction of the 
President, sohcited the attention of the Hon. Mr. Donel- 
son, and has been authorized by him to say that, in case of 
the anticipated emergency, the ])assage of the United 
States ta'oops through the Texan Territory to its western 
frontier will be welcomed and facilitated by the constituted 
authorities as well as by the people of the country. 

" The undersigned renews to Mr. Donelson the assurances 
of his distinguished consideration and regard, and remains 
his most obedient servant. 

*'Ebenezer Allen." 

To this communication Mr. Donelson replied, that he 
was instructed by the President of the United States to say 
that as soon as the existing Government and Convention of 
Texas should accept the terms of annexation offered by the 
United States, he would then conceive it to be both his 
right and duty to defend the State against the attacks of 
any power, and that if, in the meantime, the necessar\' 
emergency should arise^ troops would be furnished to repel 
an invasion. 

After the expiration of his term as Attorney-General of 
the State in 1853, Mr. Allen retired from official life and 



EBENEZER ALLEN. 207 

resumed the practice of bis profession. He afterwards be- 
came deeply interested in the construction of raih-oads, and 
was one of the projectors and early managers of the Texas 
Central Road. But when the aggressions of the North 
upon the institutions of the South culminated in 1860 in an 
organized and avowed hostility and an "irrepressible con- 
flict," he was as desirous of withdrawing the Lone Star 
from the banner of the Union as he was of placing it there 
in 1845 ; and when the war began he entered the Confed- 
erate service, and died in Virginia in 1863. 



208 BENCH AND BAK OF TEXAS. 



JAMES WILLIE. 



This distinguished lawyer was born in Wilkes County, 
Georgia, on the 5th day of January, 1823. His educational 
opportunities were confined to his early youth, and having 
enjoyed during that period only such advantages as the 
common schools of his nativity afforded , he was thrown 
an orphan upon his own resources. But possessed of an 
active mind, a combative energy and commendable aspira- 
tion, he sought only for an opportunity to rise above the 
circumstances and trammels of his early life, and devoloped 
the germs of a bright genius and the elements of a noble 
character. 

He left his paternal home before he had reached the age of 
his majority and boldly throwing himtelf into the life of 
manhood, emigrated to Texas and located near Independ- 
ence, in Washington County, where he was encouraged and 
aided by his uncle, Dr. Asa Hoxie, an eminent and affluent 
citizen of that county. Here he prepared himself for the 
bar, began the practice of his profession, and resided dur- 
ing the greater portion of his life. 

In 1846 he was elected to represent his county in the first 
Legislature of Texas, which was convened under circum- 
stances requiring the wisest and best men of the State, and 
his talents and discretion were conspicuous in the varied 
and difficult proceedings involving the task of framing laws 
in compliance with the requirements of the new Constitu- 
tion and of putting the machinery of the State government in 
proper motion. He was considered one of the ablest and 
most useful members of the body, and as a recognition of 
his eminent services, he was re-elected to the second Legis- 
lature, and afterwards, declining all political honors and 



JAMES WILLIE. 209 

discarding all official aspirations, he devoted himself closely 
and vigorously to the practice of his profession. 

In 1856 he was made the nominee of the Democratic 
party for the position of attorney-general, and was elected 
by a large majority of the popular vote. He discharged 
the duties of that office with great honor to himself and in 
a manner highly serviceable to the State, and at the expira- 
tion of his term, declining re-election, he retired finally 
from official life, and, with one exception, devoted the re- 
mainder of his days to the demands of an extensive prac- 
tice. 

In pursuance to an act of the Legislature of Texas, passed 
in 1854, Mr. Willie was appointed by Governor Pease to co- 
operate with John W. Harris and O. C. Hartley, in amending 
revising and arranging both the civil and criminal laws of 
the State, and in dividing their labor the task of revising and 
compiling the civil laws was assigned to Mr. Hartley, while 
Messrs. Willie and Harris proceeded jointly to arrange and 
codify the criminal laws ; and the excellent Penal Code and 
Code of Criminal Procedure of Texas are the results of 
their labors. Pursuant to the act Mr. Willie was appointed 
to prepare their indices and superintend their publication, 
which he accomplished without material error in the most 
convenient form. These Codes were adopted by the Legis- 
lature in 1856, and contain all the criminal laws recognized 
as of force in the State. 

Mr. Willie was a man of great natural power of mind. 
His talent was brilliant and his energy indomitable; these 
enabled him to climb continuously and rapidly to a hio-h 
place of professional eminence. He was a man of versatile 
o;enius and varied learning. His mind was of the hio-hest 
analytical order, developed and matured by severe trainino-. 
His perception was acute and vigilant, quick to seize upon 
the gist of a proposition, and profound and searching in its 
penetration. His judgment tutored to exactness by a thor- 
ough understanding and balanced by caution and correct 
association was rarely at fault in determining the real char- 
acter and merits of a legal question, and he was one of the 
best practitioners at the Texas bar. His logic was verified 
U 



210 BENCH AND BAR OF TEXAS. 

by a chain of irrefutable points, linked with sound reason, 
and his briefs were always well prepared and well argued. 
Supported by an ample store of precedent, strong powers 
of analogy and parity of reason, and above all by a thorough 
knowledge of statute laws, his positions, even amid the 
lurid merits of a doubtful case, were always well fortified 
and exercised a cogent bearing upon conviction. 

His personal qualities were such as adorn the best minds, 
and the best characters. He was a man of the highest 
sense of honor. Stern and inflexible in the performance 
of duty, yet amiable and kind in his disposition, punctij- 
lious in gentlemanly amenities and professional ethics, and 
was an ornament to the bar and society. 

During his practice Mr. Willie was associated with several 
gentlemen of distinction, among them Judge W. S. Day, 
of Austin, and his younger brother. Chief Justice Asa H. 
Willie. His last partner wa^ the gallant Col. W. P. 
Rodgers, the place of whose death and the charge he made 
are told and pointed out to every stranger on the heights 
that overlook Corinth. 

Mr. Willie was married in early life to Miss Sallie 
Johnson, the accomplished daughter of Judge Thomas 
Johnson, of Washington County, and who at the time of 
his death in 1848, was the attorney for the Washington 
judicial district. She is said to have been a most beautiful 
and lovely woman, and crowned his life with the highest 
domestic felicity. He died at Houston in 1863. 



O. C. HARTLEY. 211 



O. C. Hartley. 



Oliver Cromwell Hartley was born in Bedford County, 
Pennsylvania, on the 31st of March, 1823, where his an- 
cestors, who emigrated from England, settled soon after 
the American Revolution. He was educated at Franklin 
and Marshall College, from which he was graduated, and 
honored with the valedictory address of his class in 1841. 
He afterwards studied law in the office of Samuel M. 
Barclay, an eminent lawyer of Bedford, and at the age of 
his majority was admitted to the bar and began the practice 
of his profession. In 1845 he was married to Miss Susan 
C. Davis, of Bedford, and in 1846 removed to Texas and 
located at Galveston. The Mexican war was now the object 
of public attention and interest, and a call was made for 
volunteers to rescue the little army of Gen. Taylor from 
its perilous position on the Rio Grande. Mr. Hartley vol- 
unteered as a private, and hastened with his company to 
the seat of war, which he reached soon after the battles of 
Palo Alto and Resaca had been fought, and which enabled 
the American commander to assume the offensive, and there 
was no immediate need for the services of the company to 
which he was attached. On the organization of Colonel 
Johnson's regiment, he was elected a lieutenant in the 
company from Galveston, which, having been disbanded 
during the summer, he returned to that city, and resumed 
his practice with intense application. 

The statutes of the State were at that time arranged in 
much confusion, and the members of the bar greatly felt the 
inconvenience occasioned by the want of a sufficient digest. 
Mr. Hartley prepared a synoptical index of the laws for 
his own use, which became the basis of his admirable 
Digest of Texas Laws. This work was begun in 1848, and 



212 BENCH AND BAR OF TEXAS. 

was submitted to the Legislature in the spring of 1850, 
which authorized the Governor to subscribe for one thousand 
five hundred copies for the use of the State. His digest 
full}'" met the wants of the profession, and was justly 
regarded as a work of great merit and perfection. 

In 1851 he was elected to represent Galveston County in 
the Legislature, in which he was distinguished as an efficient 
and useful member. It was said of him that " he was noted 
for the frankness and independence of his bearing, and his 
refusal to enter into the intrigues and cabals by which legis- 
lation is so often controlled." 

While a member of the Legislature he was appointed 
reporter of the decisions of the Supreme Court, and held 
this office until his death. His skill as a reporter is 
recognized as eminent. His analysis is accurate and 
thovough , and his syllabi present a clear and concise exposi- 
tion of law. He was especially apt and felicitous in 
eliminating distinctive principles and establishing legal 
results from complicated relations and views arising from 
a combination of facts, and his efforts greatly aided in the 
development of the peculiar system of Texas jurisprudence. 

In February, 1854, he was appointed by the Governor 
one of the three commissioners authorized by the Legisla- 
ture "to prepare a code, amending, supplying, revising, 
digesting and arranging the laws of the State." The other 
members of the commission were John W. Harris and 
James Willie, and in their division of the labor, the prep- 
aration of a " Code of Civil Procedure " was assigned to 
Mr. Hartley. To this work he applied himself with intense 
application, and with an ambition that the civil code of 
Texas should be superior to that of any other State in the 
Union; and as an adjunct to its value and merits he pre- 
pared a complete system of forms to be used in all civil 
proceedings; but the State was not prepared to adopt a 
new civil code, and its publication was postponed. 

The assiduity with which he pursued his labors upon this 
work, and which was afterwards unremittedly applied to 
his duties as reporter and the demands of his profession, 
finally undermined a naturally robust and vigorous consti- 



O. C. HARTLEY. 21 O 

tutioii. He became a martyr to his industry and ambition, 
and died of apoplexy of the brain at his residence in the 
city of Galveston on the 13th of January, 1859. 

Mr. Hartley was a thorough scholar. Possessed of a 
patient fondness for investigation and the acquisition of 
knowledge, he had, from his early youth, devoted his life 
to its pursuit, and his mind was disciplined by a thorough 
and systematic training, and expanded by constant intel- 
lectual nourishment. Before he left his native State he had 
attracted the attention of Judge Jeremiah Black, who was 
at that time chief justice of Pennsylvania, whose friend- 
ship he secured and retained. He had also won the interest 
and esteem of Mr. Buchanan, who gave him flattering tes- 
timonials as a sessame to public confidence in Texas. 

As a lawyer, his philosophical turn of mind led him to 
closely investigate the relations of things, and to study their 
correct association ; hence his skill in analysis was acute, 
and his powers of comparison and parity of reason, of a 
high order. He was careful in the selection of his prem- 
ises, and when conscious of their correctness his conclusions 
were deduced in a clear and logical train. He had accus- 
tomed himself to look at both sides of a question, and per- 
ceiving the proper line of attack, he was prepared to adopt 
the most effectual line of defense. 

Notwithstanding his devotion to his profession, and his 
ambition to attain a high position at the bar, Mr. Hartley 
took a deep interest in the political issues of his day, and 
sought to measure all doubtful questions by the authority 
of the Constitution. He was a good constitutional lawyer, 
and his patriotism was kindled by the discussion of its in- 
terpretation and the merits of its provisions. He was ex- 
emplary in his private and social life. Eeared by a 
Cliristian mother, he was early guided into the walks of 
piety, and at his death was a member of the Episcopal 
Church. He was one of the few precocious youths whose 
after life realized the hopes of parental ambition and the 
promises of early years. He possessed a high sense of 
honor, and his conduct was guided by an enlightened judg- 



214 BENCH AND BAR OF TEXAS. 

ment and sensitive conscience. When the Legislature 
authorized the Governor to subscribe for his digest it pre- 
scribed that the binding should be law calf, and when his 
publishers remonstrated against that kind of binding and 
suggested law sheep, the usual material for such work, he 
insisted that it should be bound in the material designated 
by the Legislature, though it was apparent, that the require- 
ment was the result either of ignorance or inadvertence. 
His works will preserve his name and memory as long as 
there remains an annal of Texas jurisprudence. 



THOMAS J. JENNINGS. 215 



THOMAS J. Jennings. 



Thomas Jefferson Jennings, an eminent lawyer and 
Attorney-General of Texas, was born in Shenandoah County, 
Virginia, in the month of October, 1801. His father, 
William Jennings, was sheriff of that county for a number 
of terms, and, in 1808, represented it in the Legislature of 
Virginia. He subsequently removed to Kentucky and set- 
tled in Todd County, where the subject of this sketch was 
chiefly reared and prepared for college. He graduated with 
first honors at the Transylvania University in 1825, and 
afterward taught a school in Tennessee two or three terms, 
during which he prepared himself for the bar. 

In 1828 he began the practice of law at Paris, Tennes- 
see, but shortly afterward removed his office to Hunting- 
ton, where he entered upon the path of professional 
distinction in which he continued to advance during the 
remainder of his life. In 1835 he emigrated to Mississippi 
and settled in Yazoo City, where he obtained a large and 
lucrative practice. In 1840 he removed to Texas and 
located in San Augustine, at that time the Temple Bar of 
the young Kepublic, at which many eminent lawyers and 
judges began their successful career ; but having remained 
one year at San Augustine he located permanently at Na- 
cogdoches, where he practiced in copartnership with Judge 
W. B. Ochiltree until his talents and ability were recognized 
and confirmed by official promotion. 

In 1852 he was elected Attorney-General of the State, 
and was re-elected in 1854. He declined a re-election in 
1856 against the popular wish that he should continue in 
that office, and retired to his plantation near Alta, in Chero- 
kee County. But the efficiency of his public services were 
too highly appreciated to be dispensed with, and in 1857 



216 BENCH AND BAR OF TEXAS. 

he was chosen to represent that county in the Legis- 
lature. 

He was strongly Southern in his views and sentiments 
and favored prompt and vigorous measures of resistance 
to the threatening attitude of the incoming administration 
of President Lincoln toward the institutions of the South. 
He was a member of the Texas secession convention in 
1861, in which, with a conscientious conviction of right, he 
cast his fortune and sacred honor with the fate of the Con- 
federacy. He was soon afterward stricken with paralysis, 
by which he was confined to his bed for nearly two years 
and never fully recovered from the effects of the attack; 
but having removed in 1864 to Tyler, he formed a copart- 
nership with Thomas Selman and continued his practice 
there until 1877, when he removed to Fort Worth, which 
was the field of his last professional labors. He died at 
the latter place on the 20th of September, 1881. 



JOHN A. WHARTON. 217 



John a. Wharton. 



The subject of this sketch was born m Nashville, Ten- 
nessee, during the month of April, 1809, His parents 
were natives of Virtriniti. His father, William Wharton, 
was born and reared in Albemarle County, and his mother, 
whose maiden name was Judith Harris, was reared in the 
adjoining county of Nelson. They removed to the neigh- 
borhood of Nashville soon after their marriage and were 
among the pioneer settlers of that country. 

John lost his father when he was about seven years of 
age, and in a short period his misfortune was more than 
doubled by the death of his excellent mother. Thus situated, 
his uncle, Jesse Wharton, who was also a citizen of Nash- 
ville, became the guardian of his person and his little 
fortune. He gave him the best opportunities for acquiring 
an education that Nashville could then afford ; but John is 
said to have been averse to the discipline and application 
necessary to attain distinction as a scholar; yet he was an 
ambitious and aspiring youth, and as soon as he was 
qualified, chose the law as his profession, and began a 
vigorous preparation for the bar. 

Having obtained his license, and finding the bar at 
Nashville crowded with many lawyers of eminence, he saw 
but little immediate prospect for one of his age and attain- 
ments, and determined to remove to New Orleans and seek 
his fortune by the practice of his profession in that city. 
He was but twenty-one years of age when he located in 
New Orleans, where he maintained himself by his practice for 
about four years. 

In the meantime his older brother had married a Texan 
lady and had become a resident of this State; and it was 
apparent that the Texans would soon declare their inde- 
pendence of Mexico and establish a government for 
themselves. This prospect opened a new and invitins: fi^'^ 



218 • BENCH AND BAR OF TEXAS. 

to young Wharton. He had been reared in the immediate 
neighborhood of General Jackson, of whom he was a great 
admirer, and drawing his inspirations from the fame and 
sentiments of that famous chieftain, he immediately and 
ardently espoused the cause of Texas. 

In 1833 he abandoned his residence and his practice in 
New Orleans and removed to Brazoria County, where 
his brother then resided, and from that time became a 
zealous advocate of the Texas Revolution. The history 
of those times shows that as early as the 23d of June, 
1835, the municipality of Cohimbia, in the county of 
Brazoria, had the honor of first calling for a consultation. 
The citizens of the county generally approved this 
course, and at a public meeting held on the 15th of August 
following, instructed their committee of safety to prepare 
an address to all the people of Texas, requesting union and 
concert of action for a general consultation of all the 
municipalities. 

In furtherance of this movement, John A. Wharton, 
Branch T. Archer, William H. Jack and others, were 
appointed a committee, who, on the 20th of August 
issued an address which was dispatched to all the jurisdic- 
tions, advising that an election should be held- in each 
municipality on the 5th of October, for the purpose of 
choosing five delegates to represent them in a consultation 
to be convened at Washington ten days afterwards. 

In this and in all subsequent proceedings, John A. 
Wharton was among the leading spirits. In the conflict 
which shortly ensued, he was the adjutant-general of Gen- 
eral Houston, and bore a conspicuous part on the battle- 
field of San Jacinto. When the onset was over and the 
Mexicans surrendered and threw down' their arms, he was 
as solicitous to save the lives of the prisoners as he had 
been but a few moments before to win the battle. 

It will be borne in mind that this occurred within a very 
short time after the massacre of the Texas soldiers at the 
Alamo and Goliad; and the soldiers at San Jacinto, burn- 
ins: to reveiioe the deaths of those who had been their com- 
rades in arms, charged upon the camp of the enemy with 
the inspii'ing war cry, " Remember the Alamo I Remember 



JOHN A. WHARTON. 219 

Goliad!" So intense was the excitement, that they con- 
tinued to massacre the Mexicans after they had surrendered 
and thrown down their arms. To arrest this, Wharton 
threw himself, as it were, between the parties, and com- 
manded the Texan soldiers to cease firing upon the enemy. 
Finding that one man disobeyed his command and was 
about to fire upon a Mexican, Wharton drew his pistol and 
leveled it at the disobedient soldier, commanding him to 
desist. At the same time, so great was the excitement that 
three other Texan soldiers leveled their rifles upon Whar- 
ton, determined to shoot him if he executed his threat. 

Thus this brave and noble man saved the life of a sup- 
pliant enemy at the imminent peril of his own. 

On the day after the battle, when General Santa Anna 
was taken to the headquarters of Houston, in the disguise 
of a common soldier, Wharton, fearing that, if he was 
recognized by the Texans, they might, in their blind 
fury, put him to death, had recourse to a ruse whereby 
he could command the attention and acquire influ- 
ence over the minds of the soldiers. Having assembled 
them by a call " To arms ! " he addressed them as follows: 
" Soldiers, on yesterday each individual in this gallant 
army covered himself with glory, winning the freedom of 
our country by conquering a force more than twice our 
numbers. You have defeated in battle and taken as pris- 
oner the commanding general of the Mexican army, Santa 
Anna, the President of eight millions of people. He, who 
but yesterday deemed himself the arbiter of others' lives, 
is now a suppliant for his own. Kemember, soldiers, that 
the truly brave are always generous, always merciful. The 
eyes of the world will soon be attracted towards us by the 
glory of our achievements. Let us do nothing to tarnish 
our arms; but, on the contrary, let us prove to mankind 
that we are as generous as we are brave." This speech 
perhaps saved the illustrious prisoner from assassination and 
the army of San Jacinto from disgrace. 

The next office held by Colonel Wharton was that of 
Secretary of the Navy. After the Mexican army had 
abandoned Texas and the courts were organized, in the 
year 1837, he opened an office in the town of Brazoria and 



220 BENCH AND BAR OF TEXAS. 

ensased a2:ain in the practice of law. E. M. Pease, Esq., 
became his partner, and they practiced together under the 
firm name of Wharton & Pease, until the month of April, 
1838. Then John W. Harris became a partner of the firm, 
and the three practiced together under the name of Harris 
& Pease. Their practice soon became extensive, and they 
were engaged in the most important cases. 

In the summer of 1838 Colonel Wharton was elected to 
represent the county of Brazoria in the House of Repre- 
sentatives of the Republic. He repaired to Houston 
(which was the seat of government), in the fall of 1838, 
to be present at the meeting of Congress. There he was 
taken violently ill and died in the latter part of that year. 

John A. Wharton was a man of a superior caste of mind. 
He was self-relying ; formed his opinions from his own 
judgment, and was of a stern and independent will. He 
was regarded as one of the leading lawyers of the Republic. 
At the bar he was esteemed an able competitor. He was 
a logical and eloquent debater, and his high moral stand- 
ing gave great weight to his arguments. The consequence 
was that he practiced his profession with great success. 

Amono- those with whom he associated he had the warmest 
and most devoted friends. These he deserved to have; 
for those who knew him best were at a loss which to admire 
most — the elevation of his mind or the generosity of his 
heart. 

I can not better conclude this sketch than by quoting 
a few extracts from the eulogy pronounced upon Colonel 
Wharton by David G. Burnet, the ex-President of the 
Republic. When his remains were brought into the 
House of Representatives, and the members of Congress 
with many others were there assembled, the venerable ex- 
President commenced his eulogy thus: "The keenest 
blade upon the battle-field of San Jacinto lies broken be- 
fore you." 

In a subsequent portion of his address he said, " A nobler 
spirit than John A. Wharton's does not adorn the annals 
of Texas; " and to show the nobility of Wharton's nature 
the speaker continued: "And all the oppressed that 
wanted strength had his at their command." 



\ 




Gdv, E, M, FeasE 



ELISHA MARSHALL PEASE. 221 



Elisha Marshall Pease. 



The subject of this memoir was born in Enfield, Con- 
necticut, on the 3d of January, 1812. His early educa- 
tional advantages were limited to the schools of his native 
town and a short attendance at an academy in West Field, 
Massachusetts. At the age of fourteen years he was placed 
as a clerk in a country store and early acquired a knowl- 
edge of accounts, and the habits of promptness and punc- 
tuality in business, which characterized him in after life and 
insured for him a successful career. 

While in New Orleans on business in the fall of 1834 
he was allured by the glowing accounts which he heard of 
the features and prospects of the country west of the 
Sabine, and determined to seek a home and fortune in its 
virgm wastes. He proceeded to Valasco and thence to the 
frontier settlements on the Colorado and located at Mina, 
now the town of Bastrop, where he began the study of law 
in the office of Colonel D. C. Barrett, who had just entered 
upon the practice of the profession. He pursued his stud- 
ies with energy and vigor; but his clerical qualifications 
caused him soon afterward to be appointed secretary of the 
Committee of Safety for the jurisdiction of Mina, and in 
this capacity he began that active participation in public 
affairs which continued with intervals throuo-hout his Ions:, 
eventful and useful life. 

The first sounds of the Texas Eevolution in 1835 kindled 
the most ardent sentiments of patriotism and awakened 
every energy of its people. Mr. Pease was engaged in the first 
skirmish of the war at Gonzales, and was soon afterward 
made secretary of the council of the Provisional Govern- 
ment, and held that position until the government ad interim 
intervened in March, 1836. So marked and recognized 



222 BENCH AND BAR OF TEXAS. 

were his abilities that, although he was not a member of 
the convention which declared the independence of Texas, 
they were invoked to assist in framing the ordinances of 
the new government and the Constitution of the Republic. 
During the summer of 1836 he served successively as chief 
clerk of the navy and treasury departments, and for a 
short time acted as Secretary of the Treasury upon the 
death of Secretary Hardeman. 

In November, 1836, he was appointed clerk of the Judi- 
ciary Committee of the House of Representatives, and 
drafted the laws organizing the judiciary of the Republic, 
and the lavvs creating and defining the duties of the 
various comity officers. At the close of the first session 
of Congress in December, 1836, President Houston ten- 
dered him the position of Postmaster-General ; but he 
declined the office and returned to the study of law in the 
office of Colonel John A. Wharton, of Brazoria. 

In April, 1837, he was admitted to the bar at the town 
of Washington, but soon afterward accepted the office of 
Controller of Public Accounts. He resigned this position 
in the ensuing December and retired to Brazoria, where he 
resumed the practice of law in copartnership with Colonel 
John A. Wharton. In 1838, John W. Harris became asso- 
ciated with them, and after the death of Colonel Wharton, 
which occurred soon after, the firm of Harris & Pease 
continued for many years, and became one of the most dis- 
tinguished in the State. During this period Mr. Pease 
served as district attorney for a short time, and after an- 
nexation, in 1846, was elected to the first Legislature from 
Brazoria County. In the business of this assembly he took 
an active part, and was the author of the laws regulating 
proceedings in the District Courts and of many other laws 
of importance enacted during that session. He was re- 
elected to the House in the second Legislature, and, as 
chairman of the Judiciary Committee, originated the pro- 
bate laws of 1848. 

In 1850 he was elected to the Senate in the third Legis- 
islature, and served during the regular session ; but, being 
absent from the State when an extra session was convened 



ELISHA MARSHALL PEASE. 223 

by Governor Bell during that year, he resigned and ter- 
minated his legislative services. 

In 1853 he was elected Governor of the State and was re- 
elected in 1855. The period of his administration was one 
of great prosperity, and measures were adopted which pro- 
moted the permanent welfare of the State. The revolu- 
tionary debt of Texas was paid, a school fund of two 
millions of dollars was created ; alternate sections of lands 
granted to railroads were set apart for the benefit of public 
schools; the lunatic asylum, orphan asylum, institutions 
for the deaf and dumb, and for the blind, were established, 
and ample grants of lands were made for their support. 
One hundred thousand dollars were set apart for a State 
university. All these measures were recommended by him 
and effected by his influence. The expenses of the State 
government were restrained below the amount of revenue 
derived from taxation, and at the close of his administration 
Texas was entirely free from debt. His rejection of the 
attempted deposit of the spurious Pacific Railroad bonds 
and other instances of watchful care over the interest of the 
State saved to it large sums of money. Governor Pease 
always acted with the Democratic party until the policy of 
secession drove him from it in 1861. He did not think that 
there was anything in the situation of affairs to justify that 
measure, and he viewed it as a sure path to disaster and 
humiliation. He remained in Texas during the war, but took 
no part in public affairs, and after its close acted with the 
Republican party. In 1867 he was appointed Provisional 
Governor of the State by the military authorities and held that 
oflSce until 1869, when he resigned in consequence of a dif- 
ference of opinion between him and the commander of the 
district in regard to the reorganization of the State govern- 
ment. He represented Texas in the convention at Cincin- 
nati in 1872, which nominated Horace Greeley for President. 
In 1874 the office of collector of the port of Galveston 
was offered him by Secretary Bristow, which he declined, 
but accepted the position in 1879 when it was tendered him 
by President Hayes, which was his last public service. He 
was afterwards vice-president of the First National Bank 



224 BENCH AND BAR OF TEXAS. 

of Austin, and died at Lampassas on the 26th of August, 
1883. 

Governor Pe.ise was endowed with intellectual talents of 
a high order. He was quick to perceive the character and 
gist of a proposition, acute in discerning those features of 
a question which form the hinges of reason, and prompt in 
the exercise of a sound judgment. He possessed great in- 
tellectual independence, and, however extensive may have 
been his knowledge of the opinions of others, always relied 
upon himself for a satisfactory and conscientious solution 
of the facts and principles which underlaid the subjects of 
his investigation. 

As a lawyer these qualities rendered him a safe and sure- 
footed guide and counselor. His conclusions were the re- 
sult of a deep and patient search for truth. His judgment 
was sustained by a calm, impartial and discriminating 
mind, and his views were maintained with honesty and can- 
dor. Few lawyers were more expert in determining the 
merits of a case upon proper statement of the facts, and 
he never counseled hopeless or doubtful litigation, but made 
it a rule to advise his clients that a bad compromise was 
often better than a good suit. 

In consequence of an impediment in his speech he made 
no pretensions to oratory, and rarely made an oral argu- 
ment at the bar ; but when he did address the court or jur}^ 
notwithstandino; his disadvantages, so OTeat was the confi- 
dence reposed in his judgment and sincerity that he never 
lacked the most interested attention, nor failed to make a 
favorable impression. His briefs were always clear, fair 
and logical, and while his patient research armed him with 
every available feature, he never sought an undue advan- 
tage. So fixed and prominent were these traits that Chief 
Justice Wheeler once said that the statements of the facts in 
his briefs were always so lucid and just he could rely upon 
them without reference to the record. 

Candor and sincerity were the ruling traits of his charac- 
ter. He followed the guide of principle and never tem- 
porized with expedient ; but while he possessed an 
adamantine will, he was quick to recede from a position 



ELISHA MARSHALL PEASE. 225 

which could not stand the test of reason and experience. 
These qualities would have rendered him an excellent judge. 
His decisions would have been strictly upon the merits of 
a case, regardless of the persons who might have been the 
parties to the contest. He considered the law as the 
common base of society, upon which every member should 
stand with a fair and equal footing; and its proper admin- 
istration the most sacred function pertaining to human 
affairs. The deep indentations which its great principles 
had wrought in his mind met with reciprocal impressions 
upon his heart, and it was to him truly a " rule of action" 
in all the relations of life, which he delighted to enforce 
upon those who sought to violate its precepts or evade the 
dictates of justice. His accurate perception, acute analysis 
and superior judgment enabled him to eliminate from 
almost every medley of circumstance or contrariety of 
precedent the principles of truth and equity. He was 
thoroughly familiar with the laws of Texas, and with the 
elements and peculiar combination of its jurisprudence, 
which he knew in its origin and in all the phases of its 
development. This, with his unswerving integrity and 
known love of justice, invited confidence and patronage, 
and he was one of the most successful practitioners in the 
State. 

His strong will and independent interpretation of the 
nature and import of events impelled him, while he was 
Provisional Governor, to advocate a policy obnoxious to a 
large majority of the Texan people. But it was not the 
dictate of partisanism, as charged by his opponents. He 
was as honest in his political convictions as in his legal 
opinions. It was an error arising from the novelty of cir- 
cumstances, rather than from a capricious will or inimical 
design. He believed that the tenets and policy of the 
dominant party, emerging from the results of the civil war, 
were permanent and unalterable, and that the sooner and 
more effectually they were accepted and enforced, the 
sooner would peace and prosperity be re-established. But 
when, during the administration of Governor Davis, he saw 
the iniquities to which they might lead, he recoiled from 

15 



22(3 BENCH AND BAR OF TEXAS. 

the partisan excesses of that executive and threw his great 
influence into the scale of conservatism. 

In private and social life, Governor Pease was a model 
of propriety and gentility. He carried his best qualities 
into the circles of friendship and affection, and in all his 
dealings with his fellow-men not a breath of injustice or 
undue advantage marred the faith reposed in his personal 
integrity. His word was deemed a sufficient seal to any 
obligation, and no man was more readily and safely trusted. 
He was congenial, generous and kind-hearted, and his 
home was the seat of a genuine and flowing hospitality. 
He was married in 1850 to Miss L. C. Niles, of Windsor, 
Connecticut, and this accomplished and most excellent 
lady still maintains, at her elegant seat near Austin, the 
hospitality which, in his lifetime, welcomed his friends to 
his generous board. 

In all the relations of life, he made the Golden Rule his 
motto. He was always satisfied with his own and coveted 
nothing belonging to his neighbors. He was a model hus- 
band, father and friend, and, above all, an honest man and 
a patriot. The record of his public services form some of 
the brightest pages of Texas history, and it would be diffi- 
cult to find a Governor or statesman who has done more 
for the prosperity of his State and the happiness of his 
people. 

The talisman of his success was a continued, strenuous 
and determined effort. He followed the polar star of 
duty, as seen through the glasses of conscious rectitude, and 
he was always true to the cause of virtue. It has been 
said that the bar instructs the bench no less than it is in- 
structed by it, and, while Governor Pense never held a 
judicial office, his genius impressed itself upon Texas juris- 
prudence, and his name will ever be associated with the 
munificent and charitable polity which has become the 
pride and honor of the State. 

In his message to the Legislature, on December 23, 
1853, he said : — 

«*In recommending measures for your consideration, I 
shall mainly confine myself to a few of those important 



ELISHA MARSHALL PEASE. 227 

and leading ones that seem to have been designated by 
public opinion for the action of the present Legislature, the 
oarly adoption of which will tend rapidly to develope the 
resources of the State, and to promote the happiness and 
prosperity of its citizens. 

''Of these measures, one of the most important is, to 
make a suitable and permanent provision for the support of 
public schools. The highest and most sacred duty of a free 
government is, to provide the means for educating its citi- 
zens in a manner that will enable them to understand their 
duties and their obligations ; this, too, is a measure that is 
enjoined upon the Legislature by the Constitution. 

" The want of available means has heretofore furnished 
a ready excuse for the neglect of this duty. But this no 
longer exists. The State now has ample mea/ns at its com- 
mand, and an opportunity is offered to establish a system 
of public schools that will extend its benefits to every child 
within its limits ; if we fail to embrace it, we shall be faith- 
less to our duties and the trust that has been reposed in us 
by our fellow-citizens. 

"It is respectfully recommended, that two millions of 
dollars of the United States five per cent bonds, now in 
the treasury, shall be appropriated and set apart as a per- 
manent fund for the support of public schools. That the 
income of this fund shall be annually apportioned to the 
several counties of the State, according to the number of 
free children in each between the ages of five and sixteen 
years, to be ascertained in such manner as may be consid- 
ered most convenient ; and that the amount due to each 
county shall be paid over to the county treasurer semi- 
annually, to be disbursed under the orders of the county 
courts, to such teachers as the parents or guardians of the 
children may choose to employ for their education. 

*' I do not pretend to recommend this as a perfect sys- 
tem ; but its operation will be simple and cheap ; it may be 
commenced without delay, and it seems to be better adapted 
to our situation than any other system that has come under 
my notice. A plan very similar to this has succeeded well 
in some of the neighboring States, where the population is 



228 BENCH AND BAR OF TEXAS. 

sparse, like our own. Time and experience will point out 
the defects of the system proposed, and enable us by future 
legislation to perfect and adapt it to the situation and wants 
of our population. 

"I would also recommend that the amount which has 
already accumulated by the appropriation of the one-tenth 
of the annual revenue of the State derivable from taxation, 
be added to the principal of this fund, and that for the 
future, this tenth be apportioned in the same manner as the 
income of the fund. 

" Under the present provisions of the Constitution, the 
lands that have been donated to the several counties for 
public schools can not be alienated in fee, nor disposed of 
otherwise than by lease, for a term not exceeding twenty 
years. In a State where land is so cheap as it is here, and 
where so large a quantity is in market, it can not be ex- 
pected that under these provisions any benefit will be 
derived from these school lands during the present genera- 
tion. Much of it is located in large bodies, in sections of 
the State where it would be improved if subject to sale. 
The policy of reserving from sale, and consequently from 
cultivation, such large bodies of land, may well be ques- 
tioned, and I recommend to your consideration the propriety 
of an amendment to the Constitution, by which these lands 
may be alienated under the direction of the Legislature, 
upon the petition of a majority of the citizens of the county 
owning the lands. 

" If such an amendment were adopted, these lands might 
be subdivided into small and convenient tracts, and each 
alternate tract might be sold upon a long credit, at not less 
than a minimum price; the purchaser to pay an interest of 
six per cent on the amount of his purchase, to be annually 
expended in the same manner as the school money distrib- 
uted by the State. By adopting this policy, most of the 
counties would derive some immediate benefit from their 
school lands, and the alternate tracts reserved from sale 
would much more rapidly increase in value. 

"The want of a good university in the State, where a 
liberal education can be obtained, is a serious inconve- 



ELISHA MARSHALL PEASE. 229 

nience. It should be our policy to furnish, within our own 
limits all the means for obtaining an education, that can be 
had in any part of the Union, so as to remove the necessity 
of having to send our youth abroad to be educated among 
those who are hostile to the policy and institutions of the 
State. 

"The present seems to be a favorable time to lay the 
foundation for such an institution, and I respectfully 
recommend that the sum of two hundred and fifty thou- 
sand dollars of the United States bonds now in the treasury, 
be appropriated and set apart as a perpetual fund, the interest 
of which shall be applied to the erection and support of a 
State University. The income of such a fund, with the 
amount that may hereafter be realized from the lands 
that have been set apart by an act of the late Republic, 
will, at no distant period, enable us to build up a univer- 
sity fully adequate to all the wants of our State. I am 
aware that these lands were appropriated for the establish- 
ment and endowment of two universities, but I sugorest for 

^ DO 

your consideration, that it would be better to have one 
well endowed institution of the kind, than to apportion our 
funds for the erection of two, neither of which could 
atlbrd the advantages which are furnished by similar insti- 
tutions in other States of the Union. 

" Should such an appropriation be made, it will be 
necessary to pass laws for the location of the proposed 
university at some central point, convenient to the entire 
State, as well as for the erection of the necessary buildings 
and for the organization and government of the institution. 

" The establishment and endowment of an asylum for 
lunatics, and an institution for the education of the deaf 
and dumb, are measures that should commend themselves 
to your consideration. Our census tables show that we 
have in our midst many of both of these unfortunate 
classes, who have a claim upon our sympathy and bounty, 
and who now have to be sent away from their friends to 
distant parts of the Union, in order to obtain the means 
of alleviating and improving their condition. 

" Institutions of this character can not be established in 



230 BENCH AND BAR OF TEXAS. 

a State so new as ours, except under the care and patron- 
age of the government, and I recommend that the sum of 
five hundred thousand dollars of the United States bonds 
be appropriated and set apart as a perpetual fund, one- 
half for each of these institutions, the income of which 
shall be applied to their erection and support. Should 
you concur in this recommendation, you will of course 
pass the necessary laws for their location, establishment 
and government. 

" These appropriations will absorb a large portion of the 
United States bonds now in the treasury, but the objects 
for which it is proposed to use them are of great practical 
utility, and will be productive of benefits as lasting as the 
institutions under which we live. 

"The improvement of our navigable water-courses and 
the construction of railroads are measures of great inter- 
est to our citizens, and have deeply engaged public atten- 
tion. Our past legislation has frequently been directed to 
these objects, but it has been productive of little if any 
benefit. 

" The rejection, at the late election, of the river bill of 
the last session, can not be fairly considered as an expres- 
sion of the people against the policy of attempting to im- 
prove our navigable rivers. That bill was defective in its 
details, and made insufficient appropriations for those 
streams that are susceptible of being improved, while it 
contained many appropriations for objects of questionable 
utility. It should be borne in mind that our large rivers 
have, without any improvement, hitherto furnished the 
means of transporting most of our productions to a market, 
and we must continue to rely upon them to a great extent 
for many years, even if the construction of railroads shall 
proceed as rapidly as is anticipated by their most sanguine 
friends. It is believed that a moderate expenditure of 
money by the government would greatly increase their use- 
fulness and add largely to the value of the taxable proi:)erty 
of the State. If such be the case, it certainly is an object 
worthy of your encouragement and patronage. 

" The advantages to be derived to our State from the 



ELISHA MARSHALL PEASE. 231 

construction of railroads, are too obvious to require 
demonstration ; the necessity for them is felt and acknowl- 
edged by all, and it is a question of great interest to our 
citizens to devise and adopt some policy, by which we can 
secure their construction at the earliest period. 

"The limitations imposed by the Constitution upon the 
the power of the Legislature, preclude the State from un- 
dertaking these improvements or becoming a part owner of 
the stock of any corporation created for that purpose. 
The active capital in the hands of our own citizens is insuf- 
ficient to secure their construction, but, for the attainment 
of this object, we may hold out sufficient inducements for 
the introduction of capital from abroad. It can not be 
disguised that the population and business of the State are 
not such, as at this time, to promise the return of an imme- 
diate profit on the amount that may be invested in such 
enterprises. Indeed, it may well be doubted whether a 
railroad in any section of the State would, for the next 
five years, pay an interest of five per cent on the amount 
invested, in addition to the cost of repairs and other ex- 
penses necessary to keep the road in operation. If, there- 
fore, we would invite the employment of capital from 
abroad, in railroads in this State, we must hold out such 
inducements of ultimate profit as will compensate the 
the holders of it, for the small interest they will receive 
during the first years of its investment. Fortunately, the 
large extent of our public domain will enable us to do this, 
without imposing any onerous burden on our citizens. 

"I had intended on this occasion to present you my opin- 
ions in relation to the best mode of securing the passage 
across our State of the proposed railroad to the Pacific 
Ocean ; but this is now rendered unnecessary by the bill 
which you have already passed to provide for the construc- 
tion of the Mississippi and Pacific Railroad. While the 
principal provisions of this law are unobjectionable, I think 
it might have been improved in some of its details, particu- 
larly in that provision which authorizes the company to 
receive patents for the lands selected previous to the comple- 
tion of the entire road. 



232 BENCH AND BAR OF TEXAS. 

" It is to be hoped that this law will accomplish for the 
State all that is anticipated by its friends. 

"The duties and responsibilities imposed upon the Governor 
under the provisions of this law will be cheerfully under- 
taken, and I shall endeavor to execute them in a manner 
calculated to effect the objects intended by the Legis- 
lature. 

"In adopting any general system for aiding other com- 
panies in the construction of railroads, we find ourselves 
embarrassed by the numerous charters that have heretofore 
been granted to individuals, without any specific designation 
of the routes they were to pursue, who still hold and rely 
on them, although not a dollar of capital stock has ever 
been paid. It is much to be regretted that instead of grant- 
inf charters indiscriminately to all who applied, without 
any assurance that the applicants were possessed of the 
necessary means to comply with their provisions, the State 
did not first locate and survey such routes as the wants of 
commerce and the business of the country seemed to require^ 
and then grant charters for these routes to companies who 
should organize after a subscription of stock, with an 
amount actually paid at the time of subscribing sufficient to 
show an intention of prosecuting the work in good faith . 
Had this course been pursued, our statute books would not 
have been incumbered with railroad charters, many of them 
commencing nearly at the same point, and conflicting with 
each other in the routes they propose to pursue, nearly al 1 
of which have expired, or are about to expire, without hav- 
ing accomplished anything beneficial to the public. 

"In regard to such charters as have been heretofore 
granted, I respectfully recommend that no extension of time 
shall be granted to any company, unless satisfactory evi- 
dence is presented, that it has actually commenced the con- 
struction of its road, and that a suffi cient amount of stock 
has been paid to give a reasonable certainty that the 
road will be completed. I would also suggest that in all 
such cases, the route and termination of the road shall be 
designated, when this has not been done in the original 
charter, and if any further donations of land are made to 



ELISHA MARSHALL PEASE. 233 

such companies, they should receive the patents only on the 
final completion of their roads. 

*' In extending aid to future railroad enterprises, we ought 
to avoid the evils that have attended our past legislation on 
the subject. 

" I would suggest that all charters hereafter granted to 
railroad companies, should specifically designate the route 
to be pursued as well as the commencement and termination 
of the road. That they should appoint commissioners to 
receive subscriptions for stock, a portion of which should 
be paid at the time of subscribing, and whenever a reason- 
able amount of stock has been subscribed on these terms, 
the stockholders should be permitted to hold an election 
and organize the company. That the charter should also 
limit the time within which the companies shall commence 
their roads, and prescribe the number of miles to be con- 
structed from year to year, until their final completion. 
The State should grant bounties of land sufficient to induce 
capitalists to become stockholders in companies thus organ- 
ized, the land to be selected from time to time, as the road 
progresses, but no title to be issued until the road shall be 
completed according to the terms of the charter. These 
companies should be required to alienate the lands thus ac- 
quired within a limited time after the completion of their 
roads. Should this course be adopted, the State would 
secure the construction of valuable works of internal im- 
provement, before she parted with her lands, instead of 
being liable to have the works abandoned after those por- 
tions have been constructed which promise an immediate 
profit. 

" I would also suggest that the alternate sections upon 
the line of the Mississippi and Pacific road be granted to 
other roads connecting this with our gulf ports, with the 
Vicksburg road and the New Orleans and Opelousas road 
at such points as will best accommodate the different sec- 
tions of the State. Such a disposition of these sections is 
but just, since the portions of the State through which 
these branch roads are to be built, will receive no immediate 



234 BENCH AND BAR OF TEXAS. 

benefit from the Pacific road unless they are thus connected 
with it. 

" In addition to the aid proposed to be ex-tended to rail- 
roads in the manner heretofore indicated, I think it would 
be good policy to authorize the school fund, the university 
fund, and any other funds that may be set apart by the 
State for charitable and benevolent uses, to be loaned out, 
from time to time, to railroad companies, in this State, as 
they may progress with the construction of their roads. I 
entertain no doubt in relation to the power of the Legisla- 
ture to make this disposition of these funds. The period 
is not very remote when the United States bonds will be 
redeemable, and necessity will then force us, if we would 
derive an income from their proceeds, to make some invest- 
ment of them. If they can be securely loaned out, so as 
to be used in the prosecution of works of improvement 
calculated to develope the resources of the State, and 
contribute to the wealth and convenience of our citizens, it 
is our duty to make this disposition of them. 

''Should these views meet with your approbation, I 
recommend that a Board of Commissioners be established, 
to consist of Controller, Treasurer and Secretary of State, 
who shall be authorized, with the concurrence of the Gov- 
ernor, to loan these funds at six per cent interest per 
annum, payable semi-annually, for a period not exceeding 
twenty years, to companies chartered by this State, for the 
construction of railroads and other works of internal 
improvement. The amount loaned to any company in no 
case to exceed the one-third of the actual cost of the works 
that have been constructed, and to be well secured by a 
lien on the property of the company, subject to be enforced 
without a suit, by a sale after sixty days ' public notice. 

*' The condition of the Indian tribes within the limits of 
our State calls for some action on the part of the Legisla- 
ture. Our situation in relation to this class of population 
is different from that of any of the other frontier States 
of the Union. In these the General Government has the 
sole and exclusive control of the public domain over 



ELISHA MARSHALL PEASE. 235 

which the Indians formerly roamed, and under the power 
given by the Constitution to Congress to regulate commerce 
with the Indian tribes, that department has assigned to them 
certain limits which they are to occupy, and regulates all 
intercourse between them and the whites, and also between 
the diflerent tril)es. Under this policy, Indian depredations 
have ceased for many years. The General Government 
has the same power to regulate intercourse with the tribes 
within our limits, hut it can not be efficiently exercised, 
because having no right in the public domain, it can not set 
apart any particular district for their occupation, and with- 
out this their movements can not be controlled. I respect- 
fully suggest that a portion of our vacant domain, remote 
from the settled parts of the State, shall be appropriated 
for the temporary occupation of those remnants of tribes 
that properlj^ belong to this State ; that all locations within 
the limits thereof be prohibited, and that a qualified juris- 
diction for Indian purposes be ceded to the General 
Government for a term of years, provided she will engage 
to remove them within those limits and keep them there, 
subject to her laws regulating intercourse with the Indian 
tribes. 

" The business before the Supreme Courtis increasing so 
rapidly that it will soon be impossible, with the present 
number of judges, to dispose of the docket during each 
term ; indeed, the number of cases now taken to that court 
is so great that many important ones are continued over 
from term to term for want of sufficient time to give them 
that thorough investigation which the vast interests involved 
require at the hands of the judges. Much of their time is 
consumed in preparing the written opinions which they ave 
required to give in each case. By increasing the number 
of judges, this labor will be divided, and more time given 
to the examination and decision of causes. I therefore 
recommend an amendment to the Constitution, so as to give 
the Legislature the power to increase the number of judges 
to five. Should you concur in this recommendation, I sug- 
gest that you, at the same time, propose an amoodment, 
giving to the Governor power to fill all vacancies that may 



23(5 BENCH AND BAR OF TEXAS. 

occur in the Supreme and Districts Courts, and in the offices 
of Attorney-General, District-Attorney, Controller, Treas- 
urer and Commissioner of the General Land Office, by 
appointment, to continue in force until the vacancy can be 
filled by the people at the next regular election for State or 
county officers. Under the present provisions of the Con- 
stitution, should any of these officers die or resign, the office 
must continue vacant until an election can be held, which 
will take several months. Such an amendment would 
obviate the necessity that now exists for frequent elections 
at different periods in the year, and subserve the public 
interest by having these offices temporarily filled, imme- 
diately on the happening of a vacancy. 

" In connection with this subject, I feel it my duty to 
call your attention to the inadequate salaries now paid to 
the judges of both the Supreme and District Courts. The 
duties of these offices are very laborious, and they should 
be filled only by men of stern integrity, and of superior 
legal attainments. It would seem needless to argue that, 
in order to secure men of qualifications adequate to the 
important and laborious duties which they have to perform, 
a just compensation should be paid for their services. It 
must be obvious to all, that the present incumbents of 
these offices have never received salaries commensurate 
with their labors and merits. I trust that this subject will 
not fail to receive your early attention and efficient action. 

" Your attention is invited to the law regulating appeals 
to the Supreme Court in criminal cases, under the provis- 
ions of which, in all cases, not capital, the prisoner, after 
conviction, by taking :m appeal, is permitted to be released 
on bail. For several offenses persons may be confined to 
hard labor in the penitentiary for fifteen 3'^ears ; for others 
they may be confined in like manner for life ; still, by this 
law, they, by taking an appeal, are entitled to bail after 
they have been convicted by a jury, and thus in all cases, 
except treason, and murder in the first degree, convicts 
have it in their power to purchase exemption from the 
penalties of our criminal laws. It is hoped that this evil 
will be remedied without delay. 



ELISHA MARSHALL PEASE. 237 

" It is believed that an examination of our criminal laws 
will show, that there are some offenses for which free per- 
sons may be subjected to the barbarous punishment of 
whipping. These provisions are inconsistent with the 
general spirit of our criminal laws, and ought not longer to 
be retained. 

<♦ Our laws, both civil and criminal, in my judgment, 
require a careful revision. We have adopted, it is true, 
the best portions of two different systems, but this was not 
done at the same time, and it was usually effected by crude 
and hasty legislation ; as a necessary consequence, these 
different parts have never been brought to combine into 
one harmonious system. Our rules of pleading and of prac- 
tice in the courts are meagre and exceedingly defective. 
Our statutes concerning crimes and punishments were often 
passed without reflection, many of their provisions conflict 
with each other, and these, more than any other portions of 
our laws, require to be carefully revised and amended. 
These are defects which hasty legislation can not cure. 

" I would recommend that you make a suitable provision 
for the appointment of a commission of three gentlemen 
learned in the law, whose duty it shall be to prepare a code 
of civil and one of criminal procedure ; and also a code of 
general laws or rules of decision, and that all these be 
reported for the action of the next Legislature. 

'? Should this be done with ability and care, our system 
of procedure might be better adapted to the attainment of 
the ends of justice than any other which has been devised, 
and the whole of the rules and principles of the general 
laws, which are now diffused in an almost endless number 
of text books and reports, could then be contained in a 
single volume. This would be accessible to all, and should 
be adopted, as near as possible, to every comprehension. 

*' For the reasons mentioned above, it is evident that there 
is a stronger necessity for a revision and modification of 
our laws than those of any other State in the Union. Be- 
sides, we should receive aid from the lights furnished by 
the successful experiments of several of our sister States. 
I feel entire confidence in recommendinsr this measure to 



238 BENCH AND BAR OF TEXAS. 

your attention as one calculated to be productive of vast 
advantage to the State. 

" Our territory is so extensive and so sparsely settled 
that but little is yet known of its agricultural and mineral 
capacities. This must continue to be the case, if we wait 
for the slow process of settlement to develope them. It is 
believed that an accurate and scientific geological survey of 
the State will disclose sources of wealth and prosperity that 
would otherwise remain unknown for years ; besides giving 
an accurate knowledge of wur mineral wealth and its locali- 
ties, it will doubtless show the capacity of our soil for the 
production of many profitable articles for export, the 
cultivation of which is now entirely neglected. By diffus- 
ing this information abroad, we shall make known the 
ofreat inducements that our State offers to emio;rants, and 
insure a large increase of population. I recommend this 
measure to your serious consideration. 

•' I think it important that provision should be made for 
running and marking the boundary between Texas and the 
territories of the United States, from the point where it 
leaves Red River to where it intersects the Rio Grande. 
This duty might be imposed upon those who are selected to 
make the geological survey, without incurring much addi- 
tional expense. The execution of any law that may be 
passed on this subject would, of course, be dependent upon 
a law being passed by the Congress of the United States 
for the appointment of commissioners on her part to join 
in the work. It is believed that our Senators and Repre- 
sentatives in Congress would have no difiiculty in procuring 
the passage of such a law, if the initiatory step be taken on 
our part. 

"The penitentiary, as at present conducted, is a heavy 
expense to the State. It is believed that if the buildings 
were completed and enclosed with a wall, according to the 
original plan, and suitable workshops erected, the labor of 
the convicts might be let out to the highest bidder, for a 
term of years, for an amount more than sufficient to re- 
imburse the expense of their maintenance. Under such 
an arrangement, the contractors should be required to em- 



ELISHA MARSHALL PEASE. 239 

ploy the convicts either in manufacturing, or at such trades 
as would be least calculated to interfere v ith the mechanical 
industry of the State. It is hoped that this subject will 
receive that attention from you which its importance de- 
mands. 

" The laws granting pre-emption rights to actual settlers 
upon the public domain are somewhat obscure and conflict- 
ing in their provisions. I think it advisable that they be 
revised and so changed as to grant to each settler only two 
hundred acres of land. This is the quantity protected by 
the Constitution, as a homestead to each head of a family, 
and is sufficient for farming purposes. 

" In connection with this subject, I call your attention to 
the law in relation to the right of aliens to hold lands. 
We are daily receiving large accessions to our population, 
by immigration from foreign countries. The first wish of 
these immigrants, on their arrival here, is to secure a home 
and an interest in the soil; but they are now denied this 
privilege until they have resided here five years — the period 
required for their naturalization. In many of the States 
of the Union, laws have been passed authorizing aliens to 
hold lands immediately on their arrival, provided they make 
a declaration under oath of their intention to become citi- 
zens. Some of them have gone so far as to incorporate a 
provision in their Constitution, giving to aliens all the 
rights of citizens of the State at a period much earlier than 
they can be obtained under the naturalization laws of the 
United States. This policy has secured to these States a 
large portion of the foreign immigration for the last few 
years, and has added much to their productions and wealth. 
If the same liberal policy were here adopted, similar advan- 
tages could not tail to result to our State. 

"The State has heretofore made ample provision for a 
just and equitable settlement and payment of our revolu- 
tionary debt, and a portion of our creditors have acceded 
to the settlement of their claims, and received payment 
therefor : others refuse to acknowledg-e the riirht of the 
State to ascertain and fix the amount of her indebtedness to 
them, and insist upon receiving the face value of their 



240 BENCH AND BAR OF TEXAS. 

claims, although they were issued by the government at 
rates varying from twenty to seventy cents on the dollar. 
In consequence of this refusal, five millions of the five per 
cent stock that were to have been issued under the pro- 
visions of the act of Congress, approved the 9th day of 
September, 1850, proposmg to the State of Texas the es- 
tablishment of her northern and western boundaries, etc., 
are still unavailable to the State. A reasonable time has 
already been allowed for these creditors to accept of the 
terms proposed, and receive payment of the amount due 
them. I therefore respectfully suggest that a law shall be 
passed designating a time within which all holders of recog- 
nized claims against the State of Texas shall present them 
to the Treasurer, accompanied with releases of all claim 
against the United States for or on account thereof, in the 
form that has been prescribed by the Secretary of the 
Treasury, and approved by the President of the United 
States, or that such claims shall be forever barred and the 
holders no longer recognized as creditors. 

" The late pei'iod of your session at which I have an 
opportunity to make this communication, reminds me of 
the inappropriate time that the Governor enters upon the 
discharge of his duties. While the Legislature and the 
Governor are elected at the same time, about seven weeks 
intervene between the commencement of the labors of these 
different departments of government. It is believed that 
if the}-^ entered upon their duties simultaneously, the ses- 
sions of the Legislature would be less protracted, and a 
large amount of expenditure saved to the State. I there- 
fore recommend that the Constitution be so altered as to re- 
quire the Governor to be installed at the commencement of 
the regular sessions of the Legislature. 

" Many other subjects of legislation, both of general and 
local interest, which have not here been noticed, will doubt- 
less suggest themselves to you. 

*' The situation of Texas at this time demands practical 
legislation. 

'* I trust that all sectional feelings and prejudices will be 
discarded from your councils, and that every measure will 



ELISHA MARSHALL. PEASE. 241 

be examined and acted upon solely with reference to its 
merits, and the effect it may have upon the interest of the 
State at large. 

"Our present condition is a most prosperous one, immi- 
gration and wealth are pouring into the State more rapidly 
than at any former period. A spirit of enterprise and im- 
provement is now abroad among our people, which, if 
judiciously fostered and encouraged, will at do distant 
period enable Texas to occupy that position among her 
sister States to which she is entitled from her extent of 
territory and great natural resources. 

"It is my sincere desire that you may be able hereafter 
to reflect that your labors have contributed much to elevate 
the moral, social and political condition of the State." 

In his message to the Legislature in 1855, he said : — 

" I invite your attention to the importance of establish- 
ing a State University, which shall afford to our youth all 
those opportunities for obtaining a liberal education that 
are to be found in any part of the Union. We can not ap- 
preciate too highly the advantages of educating our children 
within the reach of parental authority, where they can daily 
witness the practical operation of our Government, its in- 
stitutions and laws, and become familiar with the habits 
and sympathies of the people with whom they are to asso- 
ciate in after life. 

" To secure these advantages is worthy of an effort on 
the part of the State, and I recommend that the sum of 
three hundred thousand dollars of the United States bonds 
now in our treasury, be appropriated as a permanent fund 
to be increased by the proceeds of the gradual sale of the 
University lands, at not less than a minimum price, after 
they shall have been subdivided into small tracts, and that 
the income of this fund be applied to the erection and sup- 
port of ^uch an institution. 

" This will enable us within a few years to erect the neces- 
sary buildings, employ professors in every branch of litera- 
ture and science, and place the institution on a sure basis 
for future prosperity and usefulness. 

** I also call your attention to the necessity of establishing 

16 



242 BENCH AND UAU OF TEXAS. 

an Asylum for Lunatics. If we had such an institution in 
our midst, where those who are afflicted with insanity could 
be promptly placed under the care of persons skilled in its 
causes and treatment, a large portion of those unfortunate 
persons might be restored to reason, and the condition of 
all greatly alleviated. 

" We also need an institution for the education of the 
deaf, dumb and blind, where these unfortunate classes may 
be taught their duties and responsibilities as citizens, and 
made useful members of society. 

" Institutions of this character are necessary in every 
community, but they can not be founded and supported 
without the care and patronage of the State. 

"1 therefore recommend that two hundred and fifty 
thousand dollars of the United States bonds, now in our 
treasury, be appropriated as a permanent fund for the 
erection and support of a lunatic asylum, and a like 
amount as a permanent fund for an institution for the edu- 
cation of the deaf and dumb and blind, and that provision 
be made for the erection of these institutions as soon as the 
income of these funds will permit. 

" If we could create and encourage among our citizens a 
spirit of independence and attachment for their own State, 
we ought to furnish them at home with all those facilities 
for improving and ameliorating their mental, social and 
physical condition, which are to be found in other parts of 
the world. We now have the means of doing this without 
imposing onerous burden upon our citizens, and if we neg- 
lect to avail ourselves of this opportunity, we shall be justly 
charoed with beino; unmindful of the hio;h duties and re- 
sponsibilities that rest upon us. 

" In compliance with the provisions of ' An Act to pro- 
vide for the construction of the Mississippi and Pacific 
Railroad,' approved the 21st of December, 1853, proposals 
for its construction were, in the first instance, invited, until 
the 1st of May, 1854, but before the arrival of that period, 
it became apparent that the time allowed for receiving pro- 
posals was too short, and it was extended to the 1st of 
August of the same year. 



ELISHA MARSHALL PEASE. 243 

" On the day to which the time had been extended, the 
propositions were opened, and it was ascertained that but 
one had been received which came within the provisions of 
the law. This was accepted, and on the 31st of August a 
contract was concluded for the construction of the road. 

"The contractors subseqently failed to make such a de- 
posit as the law required, and the contract was declared to 
be null and void. 

" Upon the failure of this contract, proposals were again 
invited, but none have been received. 

" Some of the contractors contended, for a time, that the 
deposit offered was a good one, and that they were entitled 
to the contract. But assurances have been received from 
those contractors, who are citizens of Texas, which in- 
cludes all of them but two, that the company has never 
been organized, and that they consider the contract for- 
feited, so that the whole subject is still within the control 
of the State. 

" It is a matter for your consideration whether this law 
shall be continued in force. 

" The great advantages that would accrue to Texas from 
this road, makes it a subject of deep interest to all classes 
of our citizens, and should induce all to favor the measure 
if a reasonable ^hope is entertained that it will be con- 
structed under the lavv. 

" As a part of a great national highway from the Missis- 
sippi River to the Pacific Ocean, it is probable that the 
liberal grant of land offered by this law, would secure its 
construction, provided similar inducements were offered 
for the construction of a road from the Mississippi River 
to its point of commencement, and also for its continuation 
from El Paso to the Pacific Ocean. But as a mere local 
road from the eastern line of the State to El Paso it would 
not prove to be a profitable work, during the present 
generation. 

" As far west as the Colorado River this road would pass 
through a region that would, in a few years furnish suffi- 
cient transportation and travel to make it a paying road, 
but until a road shall have been constructed from the 



244 BENCH AND BAR OF TEXAS. 

Mississippi River to its point of commencement, the un- 
certaintj' and expense that would attend the transportation 
of the iron and other materials to its point of commence- 
ment would be so great as to deter any company from 
undertaking even this part of it. 

"It is possible that a company mny be found who will 
undertake the construction of this portion, provided they 
are allowed to construct a road upon the same terms from 
the head of permanent navigation on the watiers of some 
of our bays, up to the line upon which it is proposed that 
the Pacific road shall run, and then east to the eastern line 
of the State, and west to the Colorado River. 

'* This change would make an immense saving in the 
cost for the transportation of materials, for they could be 
brought to the point of commencement with the same facil- 
ity that they could be carried to the Mississippi River, and 
from thence they could be transported over the road as it 
progresses, at an inconsiderable cost. 

" It will be found, however, that it can not be con- 
structed at the rate of one hundred miles for each year ; few if 
any roads in the United States have been constructed at the 
rate of fifty miles a year, and it will severely tax the energies 
of any company, whatever may be its resources, to construct 
a road at that rate. 

"These reflections will suggest themselves to every one 
who takes a practical view of the subject, and should be 
considered by you in determining your action in regard 
to it. 

"The present is a favorable time to revise our legisla- 
tion in regard to railroads generally. 

" "We have chartered thirty-seven railroad companies, and 
have held out greater inducements for their construction 
than were ever before offered by any government. 

" It is now nearly four years since a bonus of eight sec- 
tions of land was offered for each mile of railroad con- 
structed, and nearly two years since the bonus was increased 
to sixteen sections a mile for each twenty-five miles. 

" The result of these efforts has been, that we have one 
road of about thirty miles in operation, from Harrisburg on 



ELISHA MARSHALL PEASE. 245 

Buflalo Bayou to the neighborhood of Richmond on the 
Brazos Eiver, and two others, " The Galveston and Red 
River Railway," and " The Galveston, Houston and Hender- 
son Railroad," in the course of construction, with a reason- 
able prospect, as I am informed, of completing twenty-five 
miles each by the 30th of January next, in time to avail 
themselves of the bonus of sixteen sections. 

" So far as I have been able to learn, no other company 
is now doing any work under its charter. 

" I do not think it advisable to renew any of the charters 
heretofore granted, or to give relief to any company oro-an- 
ized under them, unless such company is now actually at 
work upon its road, and can show that it has expended a 
considerable amount of money thereon, and has the ability 
within a very short period, to complete the number of miles 
necessary to entitle it to land under the laws now in force. 

*' No new charter should be granted over a route where 
a road is already being constructed, or so near such route 
as materially to impair its value. 

" Every railroad company should be required to hold all 
meetings, for the election of its officers, within the State, 
and to have a majority of its directors resident citizens 
thereof, and also to keep its principal office for the manage- 
ment of its affairs within the State. 

" By adhering to these rules we shall correct many of the 
errors that have attended our past legislation on the sub- 
ject. 

"I am unwilling that any new charters shall be granted 
to imdividuals for their own benefit. If new charters are 
necessary, let such routes be selected as the wants and busi- 
ness of the country require ; designate their points of com- 
mencement and termination, and grant charters to 
commissioners who should be required to open books for the 
subscription of stock, after giving public notice. No sub- 
scription should be received unless five per cent thereof is 
paid at the time of subscribing, and whenever the percentage 
on the capital stock subscribed shall amount to one hundred 
thousand dollars, let the commissioners be authorized to call 
a meetinor of the subscribers and hold an election for officers: 



246 BENCH AND BAR OF TEXAS. 

after which the subscribers should become a corporation 
with all such powers as are set forth in the charter. The 
commissioners should have no right under the charter, ex- 
cept as trustees, for the benefit of the subscribers when 
they organize and become a corporation, and should be 
liable to a heavy penalty for receiving subscriptions of stock 
without the payment of five per cent thereof in cash. The 
corporation thus organized should have authority from time 
to time to receive further subscriptions to its capital stock, 
to the full amount thereof, after giving public notice, the 
subscribers in all cases paying five per cent of their stock 
at the time of subscribing. 

'* If we pursue this course, our railroad charters will 
cease to be offered for sale by individuals who have obtained 
them for purposes of speculation. Those who wish to 
construct railroads will obtain charters without paying a 
premium to the persons who have induced the Legislature 
to pass them, and we shall have no more companies organ- 
ized without capital to impose on the credulous and unwary, 
and stand in the way of those who have the disposition and 
means to construct railroads. 

" While so little has been accomplished under the policy 
heretofore pursued by the State for the encouragement of 
railroads, it becomes us to consider well what we may 
reasonably expect to be done hereafter by a continuance of 
this policy. 

" The Buffalo Bayou, Brazos and Colorado Eailroad 
Company will undoubtedly complete its road as far as Rich- 
mond during the present year. The Galveston and Red 
River Railway Company, and the Galveston, Houston and 
Henderson Railroad Company expect to complete twenty-five 
miles of their respective roads by the 30th of January^ 
1856, so as to secure the bonus of sixteen sections to the 
mile. 

" These companies will then have to continue their roads 
at the rate of twenty-five miles a year or lose the benefit of 
the bonus of sixteen sections. If they fail to do this, the 
Harrisburg company and the Henderson company may still 
have the benefit of the bonus of eight sections, but the 



ELISHA MARSHALL PEASE. 247 

latter to secure even this, will have to construct an addi- 
tional fifteen miles on or before the 1st of March, 1857, to 
save its charter. 

"The Houston company has already lost the benefit of 
the bonus of eight sections by failing to complete ten miles 
of its road within the time prescribed by its charter. 

"It is possible that some of the other companies may 
be able to avail themselves of the sixteen section bonus, as 
only those which terminate on the Gulf coast, the bays 
thereof, or on Buffalo Bayou, are subject to the provision 
which requires the construction of twenty-five miles on or 
before the 30th day of January, 1856, though it is believed 
that few, if anv of them, will ever build road enough to 
save their charters. 

"It is not generally supposed that either of the three 
companies before named will be able to construct their 
roads at the rate of twentv-five miles a year after the 30th 
of January next, so as to secure the sixteen section bonus, 
unless they are assisted by a liberal loan of money from 
the State. We can not, therefore, expect that much prog- 
ress will be made for many years to come in the construction 
of railroads in this State by private corporations, beyond 
the completion of those tracks already graded, unless such 
a loan shall be authorized, or that provision of the act 
donating lands to railroads, which requires these companies 
to construct twenty-five miles a year, is repealed, for it is 
generally conceded that they will not, at present, yield a 
sufl5cient profit to induce individuals to invest capital in 
them, without the advantages to be derived from the land 
bonus. 

" The passage of a law, similar to that attempted at your 
last session, authorizing the loan of eight thousand dollars 
a mile, might enable these three companies, if they were to 
have the sole benefit of it, to extend their roads about 
seventy-five miles in the next three years ; this, it is true, 
would afford great relief to those sections of the State 
accessible to them, but it would be those sections that are least 
in need of railroad facilities, for they are already nearest to a 
market, and would leave the greater part of the State, which 



248 BENCH AND BAR OF TEXAS. 

is now suffering for want of such facilities, in the same 
destitute situation it now is, without any certain prospect 
of being supplied. 

" What our citizens need is a general system of internal 
improvements by railroads, river improvement and canals, 
that will extend its benefits to every section of the State as 
near as practicable, and give them a cheap transportation of 
their productions to a market." 

In 1872, Attorney-General Alexander gave to A. Bledsoe, 
the Controller, his opinion that the act to incorporate the 
International Railroad Company and to provide for the aid 
of the State in its construction, was a special or private 
act, and that the Secretary of State viewing it in this light 
had caused it to be printed in the volume of special laws, 
and that, therefore, the State Treasurer could not lawfully 
sign the bonds which the Legislature had authorized to be 
issued in favor of the railroad company. 

At the request of Mr. Honey, the State Treasurer, and 
the railroad authorities, Gov. Pease expressed his written 
opinion in regard to the matter; which he rendered in a 
letter to the Treasurer in April, 1872. In this opinion 
he took the grounds that the character of an act of the 
Legislature must be determined by the general principles 
of the law which define what are public and what are pri- 
vate statutes ; that this can not sometimes be easily deter- 
mined, from the fact that statutes often relate to matters 
which partake of both a public and private character. 
The definition rendered by the most precise writers is that 
public statutes relate to the State, or to the people in their 
corporate capacity, and private statutes concern only the 
interest or benefit of certain individuals or particular 
classes of men. 

Statutes are generally intended to be public, and a pri- 
vate statute is an exception to the rule. According to these 
principles the act in question should be considered a public 
statute. This is Indicated both by its title and purpose, 
which relate both to the State and the people at large. The 
act grants bonds of the State to the railroad company and 
requires that they shall be signed by the Governor and 



ELISRA MARSHALL PEASE. 249 

Treasurer, and countersigned and registered by the Con- 
troller, and to be then delivered by the Governor to the 
proper officer of the company, whenever it should be 
proven, as provided by the act, that the company had com- 
plied with certain conditions. That the Controller should 
then cause a tax to be assessed upon all taxable property 
in the State, and upon all occupations, proportioned to the 
taxes levied hy general law for a sum sufficient to pay the 
interest on the bonds. 

Gov. Pease contended that these explicit provisions clearly 
created a debt against the State, and provided for its pay- 
ment by taxation in the manner provided by the Constitu- 
tion ; that it is the presumption of law that all statutes 
enacted by the Legislature are constitutional, and that, 
therefore, it is the duty of the officers of the State to carry 
their provisions into effect until they are declared uncon- 
stitutional by a competent judicial tribunal, unless they are 
enjoined from doing so by competent authority. Other- 
wise, if any officer of the State could refuse to carry out 
the provisions of the law which did not conform to his 
ideas of the Constitution the worst confusion and anarchy 
would be the result. 

That writers on constitutional law in commenting on pro- 
visions, similar to that in the Texas Constitution, which de- 
clares that " every law enacted by the Legislature shall 
embrace but one object, and that shall be expressed in its 
title," assert that this clause is not designed to embarrass 
legislation by multiplying the number of bills, but is in- 
tended to put an end to vicious legislation and to require 
that in every case the proposed measure shall stand upon 
its own merits. 

The Supreme Court of Texas (20 Texas Eep. 782) has 
held that this section doubtless was to prevent embracing in 
an act, having one ostensible object, provisions having no 
relevancy to that object, but really designed to effectuate 
other and wholly different objects, and thus to conceal and 
disguise the real object proposed by the provisions of an 
act under a false and deceptive title. 



250 BENCH AND BAR OF TEXAS. 

That the object of the act in question was clearly ex- 
pressed in its title and the purpose for which the aid was 
given was also clearly defined, and there was no good rea- 
son to suppose that a court would ever decide the act to be 
unconstitutional . 

That, however, much an officer of the State may be op- 
posed to the provisions of an act or its policy, he is not 
thus justified in refusing to carry it into execution. 

This hesitancy on the part of the Controller to sign 
these bonds gave rise to the mandamus case of Bledsoe, 
Controller, v. The International Railroad Company, re- 
ported in 40 Texas, in which the court held that a writ of 
mandamus did not lie against an executive officer of the 
State government; but this opinion was overruled by Chief 
Justice Moore in Kuechler v. Wright, decided at the same 
term. 



JAMES W. DALLAM. 251 



James W. Dallam. 



James Wilmer Dallam was born in the city of Baltimore, 
Maryland, on the 24th of September, 1818. His father, 
Francis J. Dallam, a highly respected citizen of that city, 
was for many years cashier of the Baltimore Bank. His 
mother was a Miss Wilmer, the daughter of an Episcopal 
clergyman. James Wilmer, the eldest son, while a boy, 
remained at home under the supervision of his parents, and 
went through the regular course of what is usually denom- 
inated a home education. 

His father wishing to give him the advantage of a college 
course, sent him to Brown University, at Providence, 
Rhode Island. After finishing his university course he 
returned to Baltimore, and studied law under that able and 
distinguished lawyer and advocate, Hon. Reverdy Johnson, 
who was afterwards Attorney-General of the United States. 

Mr. Dallam was but little more than twenty-one yeavs of 
age when he obtained license to practice his profession. 
Being unwilling to wait the usual period for a young lawj^er 
to obtain a practice in Baltimore, where the bar was literally 
crowded by so many able and established lawyers, young 
Dallam determined to emigrate to Texas to seek his fortune, 
and chose the little town of Matagorda as his future home. 
Here he remained attending to the business of his profession 
for four years. 

Finding that there was but little litigation in the courts 
at that early period, he passed the winter of 1844 in the 
small town of Washington, then the temporary capital of 
the Republic, and while there employed himself in compilinir 
the book, which he soon after published under the title of 
" Dallam's Digest." 

In the spring of 1845 Mr. Dallam went back to Baltimore, 



252 BENCH AND BAR OF TEXAS. 

and, with the assistance of his father, succeeded in pub- 
lishing his book. This work was prepared by Mr. Dallam 
under great disadvantages. But few briefs had been filed 
by the attorneys in the cases which had been decided by the 
Supreme Court of Texas, and the consequence was that the 
digest was necessarily imperfect. However, to Mr. Dallam 
must be attributed the merit of being the only lawyer 
in the Republic who conceived the idea of the enterprise. 

When the book appeared it contained, among other 
things, the decisions of the Supreme Court made during 
the five preceding years, which had not before been pub- 
lished. It was eagerly purchased by the lawyers of the 
Eepublic, and was soon regarded by them as almost indis- 
pensable in the practice of their profession. 

In the fall of 1845, Mr. Dallam returned to Matagorda, 
and on the first day of October of that year was married to 
Miss Annie P. Fisher, the daughter of Hon. S. Rhoads 
Fisher, who was one of the early settlers of Texas, was a 
strong advocate for separation from Mexico, and was after- 
ward Secretary of the Navy of the Republic of Texas. 

As there was little to be done in the practice of his 
profession, Mr. Dallam, soon after his marriage, edited a 
newspaper in the town of Matagorda. 

In the 3'^ear 1847 he was engaged by some influential 
parties in Indianola, Texas, to edit a newspaper in that 
place in both German and English. In the early part of 
the month of August of that year (1847) he went to New 
Orleans to make necessary business arrangements for 
establishing and conducting his paper. At the time of 
making this visit, he was entirely unaAvare that yellow 
fever had already made its appearance in that city. Within 
less than a week from the time of his arrival there, he was 
attacked by the prevailing epidemic, which in his case 
terminated fatally in three days. 

Thus ended the life of one whose youth gave promise of 
future usefulness. 

Mr. Dallam's death occurred on the 20th of August, 
1847, when he was not quite twenty-nine years of age. He 
had been married only two years, and left but one child. 



JAMES W. DALLAM. 253 

<in infant daughter, Annie Wilmer Dallam, who is now the 
wife of Branch T. Masterson, Esq., a much esteemed and 
prominent lawyer of Galveston, Texas. 

Mr. Dallam was a gentleman of varied and extensive 
reading, of much information and of fine literary taste. 
He was possessed, too, of untiring industry and persever- 
ance, and having studied under the tuition of that great 
lawyer, Hon. Reverdy Johnson, he was well versed in the 
principles of his profession. 

Possessing in a high degree the qualities of wit and 
humor, he was the life of the social circle in which he 
moved ; and, being of a particularly kind and genial 
disposition he had many friends, and his early and untimely 
death was much regretted by all who knew him. 



254 BENCH AND BAR OF TKXAS. 



WILLIAMSON S. OLDHAM. 



The subject of this sketch was born in Franklin County, 
Tennessee, on the 19th of June, 1813, and was a descendant 
of an old Virginia family, which emigrated from England 
and settled in that State during its colonial period. His 
father was an honest farmer of slender means, and, having 
a large family of children, was unable to give his sons even 
the advantages afforded by the common schools of the 
neighborhood. But diirino; the intermissions of his duties 
and labors of the farm, and at night, young Oldham ap- 
plied himself to the task of obtaining an education by his 
own exertions. He felt the inspirations of genius and am- 
bition, and made such progress in his course of self- 
instruction that at the age of eighteen years he opened a 
school in the mountains of Tennessee, in order to procure 
means to continue his education and prepare himself for the 
bar. Having followed this calling two years, during which 
he availed himself of every leisure moment for his own 
advancement, he obtained a situation in the office of the 
district clerk of Franklin County. While serving in this 
capacity, his energy, sprightliness and aspirations attracted 
the attention of Judge Nathan Green, afterwards Chief 
Justice of Tennessee, who kindly directed his study of the 
law. He brouo-ht to the bar the eager determination and 
assiduity which had characterized his youthful exertions, 
and so apt was his comprehension of legal principles and so 
ardent his ambition, that Judge Green, on signing his 
license, predicted for him a bright career in his chosen pro- 
fession. 

In 1836 he removed to Fayetteville, Arkansas, where he 
formed a copartnership with S. G. Sneed, who was after- 
wards a prominent lawyer of Austin, Texas. At Fayette- 



WILLIAMSON S. OLDHAM. 255 

ville Mr. Oldham soon established an eminent reputation, 
and in 1842 was speaker of the Arl^ansas House of Repre- 
sentatives. His profound knowledge of law, his talents 
and application, his great success at the bar, and his personal , 
.popularity, placed him in the line of the highest judicial 
distinction, and in 1844 he was chosen almost unanimously 
by the Legislature an associate justice of the Supreme Court 
of Arkansas, and held that position until the fall of 1848, 
when, in consequence of ill health, he resigned, in contem- 
plation of making his future home in Texas. His decisions 
settled many important questions in the jurisprudence of 
Arkansas, and are noted for their logical clearness, legal 
erudition, and for their wise application and development of 
legal principles. They are contained in the first three vol- 
umes of English's Arkansas Reports. 

In the spring of 1849 he removed to Texas and located 
at Austin, where he resumed the practice of law in copart- 
nership with James Webb, and took his place among the 
most eminent lawyers of the Texas bar. He was after- 
wards associated with William Murphy, a distinguished 
criminal lawyer of Alabama, who resided a short time in 
Austin, and subsequently with John F. Marshall and A. W. 
Terrill, also with George W. White, now of Nashville, 
Tennessee, and lastly with B. H. Davis, now of El Paso, 
Texas. While he was in copartnership with George W. 
White, in 1858, the Legislature of Texas passed an act au- 
thorizing the Governor to receive proposals for the prepa- 
ration of a digest of all the general statute laws of the 
State, and all the repealed laws of the Republic and State, 
through or under which any rights had accrued; also the 
colonization laws of Mexico, and of the State of Coahuila 
and Texas, in force at the declaration of Texas independ- 
ence, and appropriated twenty thousand dollars for the pur- 
chase of five thousand copies of the work for the use of the 
State. The contract for preparing this digest was awarded 
to Messrs. Oldham and White, and the work prepared by 
them will always hold a prominent place in the jurispru- 
dence of the State. 

In 1861 Judge Oldham was strongly in favor of secession 



256 BENCH AND BAR OF TEXAS. 

as the proper and only practical remedy for allaying the 
fears and dangers which the people of the South generally 
entertained and apprehended for their institutions under 
the hostile polic}^ and administration of the Federal gov- 
ernment, and was an active member of the convention of 
that year, which severed the connection of Texas with the 
Union. He was chosen a member of the Provisional Con- 
gress at Montgomery, and was subsequently elected a Senator 
in the Congress of the Confederate States and held that 
position until the close of the war. 

Throughout all the vicissitudes of the civil strife Judge 
Oldham was faithful and true to the cause which he had 
espoused with the pledge of his life, honor, liberty and 
property in its support. He never faltered in the advocacy 
of his principles, and repelled every sentiment of despair 
as to the result of the issue. During the last session of the 
Confederate Congress he was appointed one of a committee 
of three Senators to ascertain the remaining resources of 
the South and its chances for final success, compared with 
the power of the enemy for subjugation. He concurred 
fully in the views presented in the report of Senator Hill, 
of Georgia, that with a proper marshaling of its strength, 
an economical management of its resources, and with proper 
military skill and efficiency, the South could continue the 
war indefinitely, and until the North grew weary of the 
struggle. 

In November, 1864, the Legislature of Texas passed a 
series of resolutions concerning "peace, reconstruction and 
independence," in which it was declared that the State of 
Texas would accept no offer of peace on any terms which 
did not come through the agency of the Confederate gov- 
ernment; that the Southern States did not secede from the 
Union upon any question such as the mere preservation of 
the slave property of its citizens, but that, being free and 
sovereign States, they were resolved to preserve their free- 
dom and their sovereignty ; that even if the horrors of war 
could be obliterated, the experience of Texas as a member 
of the Union, in which she had seen every feature of the con- 
stitutional compact violated, warned her against any reunion 



WILLIAMSON S. OLDHAM. 257 

with the p.eople of the North ; that while Texas earnestly 
desired peace, it must be coupled with the iadependence of 
the South, and that it would regard any overture of the 
Federal government made to an individual State, looking 
to its return to the Union, as an insidious policy to divide 
and conquer." 

Judge Oldham introduced these resolutions in the Con- 
federate Senate, in January, 1865, and, after discussing 
theii' merits and bearing, said : — 

"Mr. President, we must avoid these consequences — 
we must keep our people united in their determination to 
be free. We must do nothing, by act or omission, that 
Avill divide them, or that will weaken their resolution never 
to submit to their enemies. I know of no better mode of 
accomplishing this than by keeping constantly and promi- 
nently before their minds the issue so clearly made up be- 
tween us and our enemies. If ever a people upon earth 
had evidence to convince them of a fact, we have the evi- 
dence to convince us, beyond all doubt, that the government 
of the United States will not treat with us except upon the 
basis of submission, or reunion, which amounts to the same 
thing. Never was an issue more clearly or distinctly made 
up. We fight for independence; they fight for subjuga- 
tion. 

" They have shown no signs of yielding, — we can not 
yield ; to do so is certain destruction. We staked our all 
upon the issue> and if we fail, all is lost. We must fight 
still longer. We must fight for peace, and continue to fight 
as the only alternative left us. We must prove by our 
arms what we never can do by argument or negotiation, 
that our enemy can not conquer us. Until we shall do that, 
we can never obtain any peace but that of subjugation. 
Then let us cease all contention and drive away all unmanly 
despondency, and go to work to arouse the energies and re- 
vive the spirit of resistance and enthusiasm of the people. 
If unwise counsels have prevailed, we but weaken ourselves 
by quarreling about it now ; if errors have been committed 
in the field, we can not repair them by warring upon those 
who committed them ; if we have met with disaster and 
ir 



258 BENCH AND BAR OF TEXAS. 

defeat, we can not rise above them by unmanly discontent 
and dispondency. 

" Our safety in thi^s struggle depends upon the harmo- 
nious and faithful union of the States of the Confederacy. 
We should a^roid everything that tends in the slightest 
degree to disintegration. I believe that we can keep them 
united, and bring to the support of the country all the 
strength and energy of the people only by adhering to the 
Constitution in letter and spirit, which all have agreed to 
as the bond of union. Discard that instrument, either in 
regard to the agencies created by it, or the powers conferred, 
and you will open the floodgates of discord and anarchy, 
of division and conflict. 

" I do not, in the slightest degree, call in question the 
patriotism of those who favor and advocate other diplomatic 
agencies than those provided by the Constitution. I know 
that they sincerely believe that by such means we will 
strengthen our cause at the North, and so far promote the 
ends of peace, and I as sincerely believe that at this time 
they will weaken our cause both there and at home, and 
thereby prolong the war and intensify its barbarism. There 
is but one mode of strengthening our cause with the people 
of the North, and that is to convince those who are opposed 
to our independence that we will never accept peace without 
it. The greater the disaster, the darker the hour, the more 
firmly and stubbornly should we assert that resolve; the 
more determined and defiant should be our tone; the more 
enegetically should we set to work to gather up our strength 
for the renewal of the combat. The clear, cheerful, ring- 
ing tone of confident defiance that we are determined ' to 
die freemen rather than live slaves,' sent out from the two 
Houses of this Congress would cheer the hearts of oui" 
people ; would renew the courage, revive the energies, con- 
firm the endurance and nerve the arms of our brave and 
gallant soldier boys in the army, who for nearly four years 
have patriotically endured and heroically battled for our 
cause. They would repeat the shout from rank to rank, 
from regiment to regiment, from brigade to brigade, from 
division to division, from corps to corps and from army to 



WILLIAMSON S. OLDHAM. 259 

army. It would be caught up by the old gray-haired fathers 
and mothers at home, by our sisters, wives and daughters, 
and even by the little children, until- its echoes would be 
heard from valley to mountain and from mountain to 
valley, and would reverberate from one end of the Confed- 
eracy to the other. Then indeed would we strengthen the 
peace party at the North, by showing that we are not to be 
overcome by disaster nor dismayed hy defeat, or that we 
can be induced to abate one iota of our just demands b}' 
reason of them ; and by convincing our enemies that we 
can not be subjugated by them. Thus our fathers in the 
Revolution of 1776, strengthened the peace party of Great 
Britain by refusing to negotiate while an invading army 
was upon their soil, and by convincing the monarch and the 
minority that subjugation was impossible. Let not the 
lesson of wisdom taught us by that example be lost to us. 
We may make up our minds that our enemies will never 
grant us peace with independence, as long as they believe 
from any cause they can conquer us ; and whenever that 
delusion is dispelled, peace will follow as naturally as day 
follows the night. The night may be dark, but the day of 
our deliverance will come if we but remain true to our- 
selves. It may be nearer than we imagine ; but whether it 
is or not, it will be all the brighter by reason of the dark- 
ness that precedes the dawn." 

On another occasion he said: " I may be regarded as 
over sanguine ; if it is so, it is because of my temperament, 
strengthened by my habits of life. From my earliest years 
I have had difficulties to encounter, with no aid to overcome 
them but self-reliance and perseverance. I have, therefore, 
been taught to believe that a determined will, enero;v and 
perseverance will accomplish anything not inhibited by the 
fiat of Omnipotence." 

At the close of the war Judge Oldham retired to Mexico 
and engasred in the task of writins^ an account' of the 
" Last Days of the Confederacy," and as a means of sup- 
porting himself he learned the art of photography from a 
Frenchman in Cardova, and pursued that calling during the 
fourteen months he resided there. Upon the fall of the 



260 BENCH AND BAR OF TEXAS. 

Empire in 1866 he went to Canada, and having seen in the 
papers the name of W. S. Oldham, of Texas, in the list of 
those pardoned, he started to his home, but on reaching New 
York, found that the pardoned individual was a relative who 
bore his name. Upon the assurance of his former partner, 
Col. G. W. White, who was then in Washington, that he 
would not be molested, he continued his homeward Journey 
to that city, where his friends urged him to accept and apply 
for a pardon which they had been assured would be readily 
granted, but thankins; them for their kind intentions and 
efforts, he declined the confession of guilt which a pardon 
implied. He said that being conscious of having done no 
wrong he could not ask for a pardon and thus impugn his 
past actions and his present convictions, and that all he 
wished was a passport to secure him from military arrest. 
He said to his friends who were interesting themselves in his 
behalf: " Tell President Johnson that if any twelve honest 
citizens of my country, possessing the qualifications of 
jurors would try me for treason, I feel confident that I can 
convince them that I have done right, but if they should 
decide that I have been guilty of treason, and the court 
should pronounce sentence upon me as a traitor, I would 
then consent to ask for and receive a pardon from him ; 
but without such a legal conviction I could not." 

He returned to Texas, without molestation, and having 
settled in Houston, devoted himself exclusively to the prac- 
tice of his profession. He look no part whatever in public 
affairs, but watched with eager anxiety for the welfare of 
his people the arbitrary measures of reconstruction. A 
citizen of no country, he felt himself an alien in the State 
he had served so faithfully and well, and in the prosperity 
of which he had centered all his worldly hopes. Thus 
wearing away the prime of his life and the meridian of his 
intellectual brilliancy, he was stricken with typhoid fever 
and died with that disease at Houston on the 8th day of 
May, 1868. 

Judge Oldham was a lawyer of great ability and a man 
of extensive literary culture. His distinguished success 
was the just reward of his eminent qualifications and noble 



WILLIAMSON S. OLDHAM. 261 

traits of character. Starting in life in the midst of insu- 
perable difficulties, without the usual opportunity of 
obtaining even the rudiments of an education, he relied 
upon himself, and guided by an unswerving purpose and 
sustained by a determination which distanced every obstacle 
in his pathway, he climbed with the sure pace of destiny to 
that eminence which formed the goal of his ambition. His 
career was a striking commentary upon self-reliance and 
perseverance in accomplishing the highest aims and noblest 
purposes, and, as he said, " anything not inhibited by 
Omnipotence." 

He was also a man of the most amiable character, strictly 
moral in his habits, and a true Christian. He possessed a 
high sense of honor, a tender conscience, a flowing gen- 
erosity and open-handed charity. He was a true patriot 
and a good man. 



262 BENCH AND BAR OF TEXAS. 



H. p. BREWSTER. 



H« Mv Percy Brewster was born in Laurens District, South 
Carolina, on the 22d of November, 1816. He descended 
from an old English family, which moved from Virginia to 
that State at an early period, and furnished many active par- 
ticipants in the Revolutionary struggle. He had two sisters 
and one brother, all of whom were deaf and dumb, and 
without the opportunities of obtaining the peculiar educa- 
tion which is now in reach of that class. The ingenuity of 
Henry was early taxed to contrive some way of communi- 
cating with them, and without any knowledge himself of 
an}'^ known system, he and his mother, who was a lady of 
brilliant intellect, invented a method by which they could 
easilv converse with the mutes so as not to be understood 
by any other person. 

At the age of twent}^ years, while visiting relations in 
Alabama, he heard of the fall of the Alamo and the massa- 
cre at Goliad, and being a magnanimous and sympathetic 
youth, and being now thrown upon his own resources, he 
determined to unite his destiny with the struggles of Texas 
for liberty and independence. Having made his way to 
New Orleans, he embarked in a vessel there and arrived at 
Velasco at the mouth of the Brazos in the spring of 1836, 
from whence he proceeded immediately to the headquarters 
of the Texan army, which he reached a short time before 
the battle of San Jacinto, and enlisted as a private soldier 
in a volunteer company. His introduction to Gen. Houston 
is said to have been merely accidental, and a freak of cir- 
cumstance similar to that which made Sir Thomas Egerton 
Earl of Ellesmere and Lord Chancellor of England. The 
attention of the general was casually directed to his genius 
and appearance, and he made him his private secretary. He 



H. P. BKEWSTER. 263 

was with the general when he was wounded at San Jacinto 
and accompanied him to New Orleans, whither he repaired 
for surgical treatment. In the month of August, 1836, he 
returned to Texas and was appointed by President Burnett 
Secretary of War. As the military affairs of the Eepublic 
were at this period comparatively quiet, he found time dur- 
ing his tenure of that office to study law, and, having en- 
gaged his fine intellect in this pursuit with his habitual vigor 
and determination, he was admitted to the bar in 1837, and 
at the expiration of President Burnet's term entered upon 
the practice of his profession at Brazoria with every pros- 
pect which energy and talent could command. 

In 1840 he was appointed district^attorney of the Second 
Judicial District, but finding his general practice to be more 
congenial to his taste and independence of character, as well 
as more remunerative, he resigned in 1843, and from that 
time declined every advance of official allurement. He re- 
cognized the Jealousy of his profession, and appreciated 
the adage that " Lady Common Law must lie alone " and 
can not be wedded with imiDunity to the wayward abstrac- 
tions of politics. 

He was a great friend and admirer of President Pierce, 
and during the latter part of his administration removed to 
Washington City, where he continued his practice until the 
clouds of civil strife gathered in 1861. He remained in 
that city until his arrest was threatened, and it is said that 
it was in consequence of a dispatch from him to the author- 
ities at Montgomery in regard to the departure of the Fed- 
eral fleet to relieve Sumpter, that the order was given to 
Gen. Beauregard to open his guns upon that fort. 

And now at the sound of war, the spirit of the Texas 
Revolution and the fires of San Jacinto rekindling in his' 
bosom, he entered the Confederate army and was made ad- 
jutant-general and chief of staff to Gen. Albert Sydney 
Johnston. In this capacity he shared the short but brilliant 
career of that officer in tiie Confederate service, and was near 
him when he fell while leading his victorious columns across 
the field of Shiloh. He was afterwards employed on special 
duty, chiefly with the command of Gen. Hood. 



264 BENCH AND BAR OF TEXAS. 

At the termination of the war he returned to Texas and 
resumed the practice of law in San Antonio, to which, as the 
j^estor of the Texas bar, he devoted his energies and talents 
until 1883, when he was appointed by Governor Ireland to 
the office of Commissioner of Insurance, Statistics and His- 
tory, and held that position at the time of his death, which 
occurred from a stroke of paralysis on the 27th of Novem- 
ber, 1884. 

The fires of two revolutions had burned and waned in his 
bosom, and, while those of the latter one were quenched by 
the cold hand of fate, the embers of principle still glowed 
in all his being and inspired every sentiment of his soul. 
While the frosts of seventy winters had wrinkled his brow 
and silvered his locks, they had wrought no sear upon his 
heart. Neither the blight of years nor the storms of revo- 
lution could shake him from the solida mens of his con- 
scientious faith ; and if the heavens had burst asunder and 
broken up, the shattered fragments would have fallen upon 
him standing erect and still lighting the torch of duty. 

Patriotism was the guiding star of his life, and, through- 
out his long career he never swerved in his endeavors to 
perform the obligations which he conceived to be due to his 
country and his fellow-man. If he w^as in some respects 
eccentric, his idiosyncrasies were such as often tread the 
paths of the purest virtue. He knew Texas from her 
cradle. Before the world had heard of her, he knew her. 
He was present at her birth, he saw her baptised into the 
family of nations, and attended her when she gave her 
hand and heart to the American Union. He abetted her in 
the wager of battle for her divorce. He saw and felt the 
decision which the Great Arbiter of war rendered against 
her, and it was happy for him that he lived to see the elec- 
tion of a Democratic President and the prospective complete 
reconciliation of the estrangement. 

In the office of Commissioner of Statistics and History 
he found a congenial element. His patriotism found in its 
duties food for reflection and inspiration. His memory was 
retentive and vigorous, and at the time of his death he was 
personally cognizant of more important and interesting 



H. P. BREWSTER. 265 

events in the history of Texas than any other person in the 
State. His pride was enlisted in a service so agreeable to 
his taste, and he spared no pains in his efforts to gather and 
preserve the incidents and details of events in which he 
was oftentimes a prominent actor. 

Colonel Brewster, though reserved in disposition, was a 
warm and constant friend and a devoted husband and 
father. He kept one of his daughters, a young lady of 
rare accomplishments, in his office with him, and was happy 
alike in having her companionship and her efficient services. 

Amid the varied opportunities which his talents com- 
manded he manifested no desire for the accumulation of 
wealth. He lived upon a higher plain than that which is 
devoted to the struggle for gain, and, while he was, as 
General Johnston characterized him, "a natural born aris- 
tocrat," and possessed every quality required for command- 
ing positions, he had no thirst for distinction, and no 
ambition for notoriety ; and, unless yielding to the demands 
of kindness and courtesy, he was reticent in regard to 
matters illustrating his varied experience and eventful life. 
He said that he desired no monumental stone, no epitaph, 
not even a grave mound, to mark his last resting place. 
He cherished the desire to be buried at sea, and on the 
evening before the battle of Shiloh, while resting under a 
tree and discussing with other officers the mightv struo-crle 
which he knew the morning would bring, he remarked to 
Colonel Thomas M. Jack, of General Johnston's staff, that 
he had no fears of death, as he was too far from the sea, 
but requested him, if he should be killed, to have him buried 
in the Gulf of Mexico. This desire he repeated to his 
daughter not long before his death, and she faithfully and 
nobly complied with his request. She carried his body to 
Galveston, where it was placed on board the little State 
steamer, Hygeia, which the Governor had kindly placed at 
her disposal, and was borne to a spot in the deep waters of 
the Gulf where the ill-fated City of Waco went down a few 
years since, and was there committed to the sea. 

The author can not by any means subscribe to that mate- 
rialistic doctrine which would consisrn 2:enius and intellectual 



266 feENCH AND BAR OF TEXAS. 

culture to the narrow sphere of an earthly existence, and 
which would send us from this world disrobed of all intel- 
lectual graces, with no conception but that of accountability, 
and with no endowment but that of an embryo capacity for 
an existence certified only by the dim scroll of religious 
faith or the blank sheet of infidelity. There is with every 
one, notwithstanding the dogmas of casuists, an inward 
revelation that the acquirements and treasures of the mind 
are immortal, and, as the Greeks expressed it, r» ai,'/jiv 
■/.rrjiia — "the posscssiou forevcr;" and when we are told 
that " ano-els desire to look into these thing-s," we are 
reminded that the cravings of the intellect are manifested 
even around the very throne of Heaven, and that it there 
continues to weave the golden threads of thought, gather 
its ambrosial food and rise higher and higher, until it is 
merged in the zenith of illimitable light. 

Col. Brewster was fond of the pure elements of nature, 
and sought to attain in death that perfect freedom from its 
alloys and dross which he had striven for in life. But 
while, as if to escape the ruins of man, he sought a burial 
beneath the waves which in his youth had borne him to the 
Texan shores, those shores will ever preserve his memory 
and proclaim his virtues. No darksome caves of the deep, 
nor emboweled caverns of the earth, nor crypts of time 
can sepulchre these. They rest in the golden urn into which 
Texas will always gather the scattered ashes of her great 
and good. 



THOMAS m'kINNEY JACK. 26' 



THOMAS MCKINNEY JACK. 



It is seldom that nature, in her partiality which designates, 
here and there, an individual as the favored recipient of her 
special endowments, and ordains him to a particular sphere 
of eminence, groups such an array of talent in the 
limits of a single family, and fashions the moral and intel- 
lectual traits of so many of its members within the mould 
of greatness, as she conferred upon that to which the subject 
of this sketch belonged. As the author has had occasion 
to observe in another work in regard to the Yergers, of 
Mi.'^sissippi, the Jacks, of Texas, seem to have been born 
lawyers. 

Captain James Jack, the grandfather of Thomas, was 
selected by his fellow-citizens of Charlotte, North Carolina, 
to convey and present the famous Mecklenburg Declaration 
of Independence to the Colonial Convention at Philadel- 
phia. His uncle, Patrick C. Jack, was one of the judges 
of the Supreme Court of the Texas Republic, and his 
father, William H. Jack, whose sketch is presented in this 
work, was one of the most distinguished lawyers of the 
Texas bar. 

Thomas McKinney Jack was born at San Phelipe, Texas, 
on the 19th of December, 1831. His mother was Laura 
Harrison, daughter of Isham Harrison, a planter of South 
Carolina, afterwards of Mississippi, where he was known as 
" Father Harrison," and was one of the best men the author 
ever knew. Thomas was highly educated, and having at- 
tended Georgetown College, in Kentucky, a short time, he 
entered Yale College, from which he was graduated in 1853 
with all the literary accomplishments which that celebrated 
institution could bestow. He afterwards read law in the 
office of Judge W. P. Ballinger, of Galveston, his brother- 



2G8 BENCH AND BAR OF TEXAS. 

in-Law,* was admitted to the bar in that city in 1855, and 
entered upon the practice of his profession as the partner 
of his preceptor with the most flattering prospects. In 
1857 he was elected to the position of County Judge, and 
in 1859 represented Galveston County in the Legislature. 

In 1860 he was an elector on the Breckinridge and Lane 
ticket, and rendered efficient service in promoting the over- 
whelming majority given in Texas for the distinguished 
Kentuckian. With the exception of these intermissions, 
he continued his practice with a growing reputation until 
the outbreak of the civil war. Upon the withdrawal of 
Texas from the Union in 1861, he acted as aid to General 
Sydney Sherman in organizing State troops at Galveston, 
and accompanied the expedition for the capture of Fort 
Brown on the Rio Grande. Returning .to Galveston, he 
enlisted in the Confederate service as a private in Wharton's 
company of Terry's rangers, and never quit the field until 
the close of the war. 

Soon after joining the army he was promoted to first 
lieutenant and made aid-de-camp to General Albert Syd- 
ney Johnson, who had known him from childhood, and was 
serving in that capacity when this great Southern leader fell 
swooning into his arms on the plains of Shiloh. He was 
then transferred to the adjutant-general's department, and 
was assigned to duty with the rank of major as adjutant- 
general of Polk's corps in the army of Tennessee. He was 
soon afterwards made lieutenant-colonel, and served upon 
the stafl' of General Polk until the death of that officer at 
Kenesaw Mountain, who also died in his arms. He was 
then made adjutant- general of the district of Texas, and 
served as such until the termination of hostilities, when he 
returned to Galveston and resumed the practice of his pro- 
fession. 

The character of Thomas M. Jack is one of the brightest 
luminaries in the annals of Texas eminence, and one that 
would have adorned the purest and most brilliant pages in 
the history of any age or country. Inheriting the legacy 
of ancestral emulation, the spirit which impelled the third 
Brutus to emulate the glory of the first, he possessed 



THOMAS m'KINNEY JACK. 269 

the invaluable stores of noble examples and the wealth of 
hallowed inspirations, which early planted in his bosom the 
strongest incentives to virtuous and vigorous action, and 
these expanded and developed into the highest order of 
moral and intellectual character, rounded and arched over 
with that blending of virtues which constitute the patriot, 
the philanthropist, the eminent lawyer and the perfect 
gentleman. He possessed a brave, candid and honorable 
nature, and was in himself the mirror of honesty and truth. 
His armor was always burnished for the maintenance of 
right, and his arrows were whetted for opposition to 
wrong; yet he was always courteous, generous and chival- 
rous in his demeanor — high wrought and sensitive as to 
the means and methods of attaining his ends, and no one 
was more tenderly considerate and sympathetic in his 
reg-ard for the feelins^s of others. 

He was a lawyer of fine ability, and his career at the bar 
was like a meteor which flashed upon the jurisprudence of 
Texas and dispensing its beams suddenly disappeared in the 
fullness of its glory. In the study of his profession be 
cherished the lofty purpose of becoming a champion of 
justice, a factor in the promotion of the welfare of society, 
and his talent, his precept and example elevated the profes- 
sion which he adorned, and bettered the community in 
which he lived. As a lawyer, soldier and citizen, the glare 
of his character will shed light upon the future generations 
of Texas, and kindle incentive and emulation in the hearts 
of all who aspire to the attainment of the highest respect 
and admiration of their fellow-citizens. 

Colonel Jack was married in 1857 to Miss Nannie Knox, 
who was a native of Lincoln County, Missouri, and a niece 
and ward of the venerable Kobert Mills, of Galveston, who, 
at the time of his death, was the oldest living merchant in 
Texas. In the noble qualities and accomplishments of this 
lady he found a polishing response to every lofty sentiment 
and noble effort, and his rougher nature became chastened 
by the tender cords of domestic affection. He died in 
Galveston on the 26th of August, 1880, soon after his 
return from the Cincinnati Convention, to which he had 



270 BENCH AND BAR OF TEXAS. 

been sent as a delegate. It is rarely that a lawyer amid the 
fierce rivalries of the bar can command or maintain the 
universally affectionate esteem enjoyed by Colonel Jack. 
He never permitted the heat of argument to render him 
unobservant of a kind and polished ethics, and he was be- 
loved by all of his professional associates. I will close these 
observations upon his character with the fervent tributes 
paid to his memory by members of the Galveston bar upon 
the announcement of his death to the courts of that city — 
by those who knew him well in every sphere of his life. 

Remarks of Hon. James B. Stubbs : — 

" I think I can see him now, scorning danger, his face 
aflame with that shining light we have wont to see en- 
throned upon his brow and flashing from his eyes in the 
forum, as he maintained the right, resented the wrong and 
illustrated the high purposes and generons promptings of 
which he was a living exemplar as well as an exponent. 

" The career of a true lawyer affords a sphere of honor 
and usefulness second to that of no other vocation. This 
he recognized, and it was not to him a stepping-stone to 
any preferment. He was the heau ideal of a lawyer. Who, 
that has ever seen or heard him in the trial of a cause, 
will withhold his assent to this statement? He never sacri- 
ficed right to expediency. From the opening of a case to 
its close, his just conception of the law, his faculty of im- 
parting his ideas, his skill in eliciting evidence, his tact in 
the management of the case, his fairness to his adversary, 
and then his lucid, earnest argument, smoothly flowing in 
rounded periods, marshaling facts and drawing conchisions 
with masterly logic and eloquence, all held the interest, ad- 
miration, and carried conviction to the hearer. Never did 
he ' extenuate or aught set down in malice.' 

"When he spoke, his face usually lit up with a radiant 
smile and his cordial greeting spread an atmosphere of 
cheerfulness about him. If his mission in life had been to 
make men happy, well was it fulfilled, for the world was 
better and happier for his having lived in it. His ready 
sallies of wit, and he was full of playful raillery, left no 
sting. In a group of persons, he was the central figure — 



THOMAS M' KINNEY JACK. 271 

the choice spirit. That indefinable quality, which, for want 
of a better name, is called personal magnetism, drew men 
about him in pleasant talk, and his views were sought, and 
found acceptation, for he illumed whatever he touched. 
He was the light and life of every circle. Now that he has 
gone, how dull and commonplace seem the scenes that 
know him no more. 

"I have spoken of his kindness to the young. He was 
their ' guide, philosopher and friend,' as well as their ad- 
mired pattern. To the younger members of his profession 
he was especially gracious, showing them the same con- 
siderate courtesy he exhibited to the first men of the land. 

" He was the soul of chivalry and honor. His winning 
address, and his sterling qualities of head and heart, 
rendered him the most perfect gentleman I ever knew. 
While his character was ' as round and perfect as a star,' 
yet, if I were called upon to particularize any predominant 
trait, I would name his sympathetic kindness, his utter un- 
selfishness, that made his life a living embodiment of the 
Golden Eule." 

Response of Hon. T. C. Hume: — 

" Is there a man of this bar — especially a young .man — 
who has not been comforted by his words of encourage- 
ment simply spoken in season ; who has not felt the pres- 
sure of his hand, and been warmed into hope by the light 
of his eyes, at some time when the need of a friend w^as 
exceeding sore? And is there a lawyer here, old or young, 
who does not feel it is something — that it is much — to 
have lived within the sphere of this man's influence; to have 
marked the loftiness of his professional name and practice, 
and to have confessed to his own heart the ennobling reflec- 
tion of his personal virtues? He was one man who spoke 
no slander, nor listened to it; who never prostituted the 
opportunities, nor solicited the employments, nor haggled 
for the rewards of the profession ; who never intervened be- 
tween his brother and the clientage he deserved to win or 
keep ; who held in knightly scorn the belittling temptations 
which often beset and sometimes degrade our ancient 
order." 



272 BENCH AND BAR OF TEXAS. 

Response of General T. N. Waul : — 

"In the prime of manhood, in the fullness of physical 
vigor, without a trace of decay or diminution of capacity; 
at the summit of professional distinction, in the merited 
enjoyment of the noblest of earthly rewards ; the respect 
and admiration and the love of all who knew him ; still 
growing and waxing stronger in all his great elements, he 
has gone from us. We shall greatly miss him from our 
faternity. How much a loved and only sister, the guide of 
his boyhood, the adviser of his mature years, the daily 
companion of his life, shall miss him, we will not attempt 
to describe. Nor can we realize in thought, much less de- 
pict in language, how much his wife and children shall miss 
him as the evening shadows fall darkly upon that home 
of which he was the light and life." 



CHAPTER YII. 



THE STATE BENCH — EMINENT LIVING JUDGES — O. M. EGBERTS — EICH- 
ARD COKE — J. H. BELL — A. H. WILLIE — THOMAS J. DEVINE — JOHN 
IRELAND — R. S. GOULD — J. W. STAYTON — C. S. WEST — R. S. WALKER 
— JOHN P. WHITE — S. A. WILLSON — J. M. HURT — A. S. WALKER — 
GEORGE CLARK — A. T. WATTS — W. S. DELANEY — E. B. TURNER. 



ORAN MILO ROBERTS. 



This eminent lawyer and patriot is a native of South 
Carolina and was born in Laurens District, on the 9th of 
July, 1815. At an early age he removed with his father's 
family to Ashville, in the mountainous region of North 
Alabama, where he was engaged in the labors of the farm. 
His early life was attended with many difficulties and 
trammeling circumstances. But he was an ambitious and 
aspiring youth, and determined to be aut Goesar aut iiullus. 
One of the noblest commentaries upon American institu- 
tions is the facility which they afford to genius and 
rectitude for rending the clouds of obscurity, for bursting 
from the most adamantine gyves of condition into the glare 
of honor and the full round orb of fame. Fate has here 
no iron bed upon which its victims, like those of Procrustes, 
are bound and fitted by the fiat of unalterable decree. 
Here genius, once fledged in the nest of morality, leaps 
forth like a young eagle from its eyrie, and spreading the 
wings of resolution, soars away to the heights of its ambi- 
tion and capacity. Here honor and distinction demand no 
glittering armorial, wealth no splendid heirloom of inherit- 
ance, and eminence no pomp of pride or lictorial badge. 

18 (273) 



274 BENCH AND BAR OF TEXAS. 

Here fame requires no arbitrary circumstances, depends 
upon no golden opportunities, and exacts no impersonal 
qualifications; but only that he who would reach its realms 
shall be guided by the beacons which it has established 
along the sacra via of its glory. 

At the age of sixteen years, young Roberts, full of natu- 
ral genius and ardor, and with the inspirations which the 
institutions of his country engendered, left his plow, and 
with slender means determined to obtain an education, and 
met at the outset with the fortune which Providence seems 
always to provide for those who earnestly seek their own 
advancement. Through the kindness of Ralf P. Lowe, an 
attorney of Ashville, and afterward an eminent lawyer, 
governor, and supreme court judge of Iowa, he obtained 
a situation in his office, where he prepared himself for 
college, and in 1836, at the age of twenty-one years, 
graduated at the University of Alabama in a class which 
furnished many others who afterwards attained distinction. 

He began the study of law in the office of Judge Ptolemy 
Harris, near St. Stephens, in South Alabama, and acted at 
the same time as private tutor to his sons to defray his 
expenses. He completed his studies in the office of Wm. 
P. Chilton, of Talladega, who was subsequently one of the 
judges of the Supreme Court of Alabama. Having obtained 
his license, he settled at Ashville in the successful practice 
of his profession, and was soon afterward elected to repre- 
sent his county in the Legislature of the State. 

But his aspirations was not yet satisfied with the flattering 
prospects which spread themselves before him. The young 
Eepublic of Texas, bright with the halo of fame and the 
glory of heroic achievement, extended inviting arms to his 
patriotism. Its unlimited resources and unbounded pros- 
pects presented their allurements to his ambition, and in 
1841 he removed to Texas and located at San Augustine, 
which was at that time a place of great political and 
professional activity, and the Athens of the Republic. He 
was equal to the severe test which a claim to distinction 
demanded and to the expectation which his talents engen- 
dered, and he was soon recognized as one of the most 



ORAN MILO ROBERTS. 275 

skillful and logical, as well as most learned advocates at the 
bar of that district. 

The elevated standard of professional excellence estab- 
lished by the eminent array of legal talent which surrounded 
him, and which he made the goal of his attainment, 
beckoned him upward and onward. His advancement 
responded to the aspirations of his genius, and in 1844 he 
was appointed by President Houston to the office of district 
attorney, which he held until the annexation of Texas to 
the Union. 

It was customary at that time for the lawyers to travel 
around the circuit in company with the judge ; it being an 
old English custom which was introduced at an early day 
in the colonies, and long lingered in the States of the Union, 
and was transplanted in the Republic by the judges aiid 
lawyers who had been accustomed to the usage in their 
native States. 

In reference to this habit Governor Roberts says : ' ' When 
the time for holding the courts arrived it was not unusual 
to see a dozen or more lawyers and the judge mount their 
horses, Avith saddle-bags, blankets, and tie ropes; and, thus 
equipped, start on their journey around the district, which 
then embraced many counties, comprising a large scope of 
country. As some of them would drop out of the company 
at different points others would fill their places, so that 
about an equal number of traveling lawyers in addition to 
the local bar, would be found in attendance at nearly every 
court. This mode of practice was continued until the civil 
war, since which the members of the bar have become more 
and more localized in their practice." 

In these professional excursions he traveled over the 
country from the Sabine to the Trinity — a distance of one 
hundred and fifty miles, and experienced all the hardships 
incident to travel in a new and sparsely settled country, 
encountering rain and storm, sloughs, and swollen streams, 
which he was often obliged to swim in order to reach his 
destination at the proper time. On one of these occasions, 
being the youngest man in the party, he was selected to 
swim theNeches River on horseback and bring over a ferry- 



276 BENCH AND BAR OF TEXAS. 

boat which was fastened to the opposite bank. He says, 
however, that the universal hospitality of the people amply 
compensated them for the fatigues and inconveniences of 
these journeys. Night and day their doors were thrown open 
to the travelers, and a hearty welcome extended them to 
share whatever comfort they could render and usually with- 
out charge. He says that their humble fare, seasoned with 
pure and disinterested kindness, was more palatable than 
the most artistic dishes of modern hotels. 

It was during these travels that he first observed the 
character and habits of the people of all classes and occu- 
pations, the peculiar and diversified characteristics of the 
country, and its varied natural productions and capabilities ; 
which excited the investigations of his inquiring mind, and 
afforded him a knowledge of the wants and wishes of the 
people, which he afterwards impressed upon the laws aud 
institutions of the State. 

On these occasions he was .brought into intimate com- 
panionship with the lawyers of the district, who were for 
the most part men of culture and intellectual vigor, but of 
distinctive characters and varied attributes, and he learned 
from this informal association with them the varied ele- 
ments and compositions of professional character. From 
the old citizens of the country he learned much of its past 
history. Among these there were men who had settled in 
the land as early as 1822, and had participated in all the 
revolutions and changes of government that had occurred 
since that time. He found them familiar with all the stir- 
ring events of the past and willing at all times to communi- 
cate them. His business afterwards led him to extend his 
researches over nearly the entire State and to note the va- 
riety in the condition of things in every section, which furn- 
ished a still wider field for investigation and reflection. 

On the organization of the judiciary of the new State 
in 1846, he was appointed by Governor Henderson judge 
of the Fifth efudicial District. He was then but thirty 
years of age; but public sentiment called for his services 
and his promotion was received with general satisfaction. 
He was appointed for the term of six years ; but, having 



ORAN MILO ROBERTS. 277 

served five years, during which he was engaged more than 
eight mouths of each year in the active duties of the bench, 
he resigned and returned to his practice at the bar. 

The judicial duties of Judge Roberts during that period 
were peculiarly arduous and exacting. He was the first 
judge of the district under the judiciary system of the 
State government, and the task devolved upon him of 
establishing a course of procedure in conformity with the 
new order of things ; to interpret and apply the body of 
statutes enacted under the new organic law, to bring them 
for the first time to the test of the Constitution, both of 
the State and the United States, and to fit them upon 
society. The rights, immunities, and liabilities of the citizen 
were to be ascertained and fixed upon a solid basis, com- 
posed of the different elements upon which they rested, 
and fashioned by the new innovations, both of the statute 
and organic law. This was rendered more difficult by the 
scarcity of precedent. But few questions of importance 
had been settled by the Supreme Court of the Republic, 
and the untamed elements of its jurisprudence mingled 
with the unexplored streams of the new system. To lead 
these into the smoo»th channels of justice required legal 
talent and judicial capacity of the highest order. But his 
ability and industry met all the requirements of the situa- 
tion ; and, gathering up the legal fragments of the revolu- 
tion and annexation, he blended them into a harmonious 
machinery, and made a lasting impression upon the juris- 
prudence of the State. 

In 1857 he was elected associate justice of the Supreme 
Court, to fill the vacancy caused by the death of Judge 
Lipscomb, and held this position until 1862, when he re- 
signed and became colonel of the Eleventh Regiment of 
Texas infantry in the Confederate arniy. 

A thorough Jeffersonian in his views of government. 
Judge Roberts was a staunch advocate of State's rights and 
was in favor of prompt and decisive measures to repel the 
aggression of the Republican party upon the rights and 
institutions of the South. As early as December, 1860, 
lie delivered an able speech at Austin upon the " Impending 



278 BENCH AND BAR OF TEXAS. 

Crisis," in which he said: " What shall Texas dor As 
one of her citizens, I am for State action — action by the 
constituted authorities of the State — action singly and. 
conjointly with other Southern States, until we are made 
secure in our rights, liberties and honors. Such action 
should be prompt, calm, deliberate, harmonious and well 
directed, so as to secure the desired object, and at the same 
time preserve peace and social order among ourselves. Our 
alleo-iance is due to both the State and Federal o-overn- 
ments, because the sovereign power of Texas, at the time 
of our annexation to the general government so ordained it 
as its will. And until the same sovereign power shall be 
brouofht into action, and declare a different will, it is our 
duty as citizens to make ourselves subservient to the one as 
well as the other." 

Discussing the question whether it was best to seek re- 
dress within the Union by demanding a constitutional 
amendment guaranteeing protection to the rights of the South- 
ern States, or by quietly withdrawing from the Union, he con- 
tinued: "In all these stages of State action, too great 
solicitude can not be felt by all parties, to preserve social 
order ; so that if the Federal government should refuse 
to recognize the right of the State to exercise its reserved 
power of changing its form of government, and should en- 
deavor to subjugate it, the energies of the people may be 
united in repelling invasion. Which one of these remedies 
may be adopted is for the people to say when they shall 
have found the means of expressing their will. It is my 
purpose now to show that the present attitude of public 
affairs justifies them in adopting either of the remedies 
that they may think necessary for their safety. I have no 
fears that inconsiderate rashness will control them. The}^ 
have pondered upon the issues of this crisis long and well. 
They have made up their minds. There is no agrarian 
spirit abroad in this country. There is no war of classes. 
There is no conflict between labor and capital. Our peo- 
ple are not asking or seeking to extort any favors from the 
government to themselves, or to deprive others of any 
right. They have no desire for a social rupture at home. 



ORAN MILO ROBERTS. 279 

Their excitement arises from an entirely opposite cause — 
a high resolve now to throw themselves in the breach, not 
to destro}', but to protect rights ; not to destroy property', 
but to protect property; not to destroy life, but to make 
life worth having; not to produce discord, but to end it. 
This excitement is not a shallow noisy riffle, but a deep 
irresistible current, springing from the firmest conviction 
of the mind." 

These sentiments vibrated upon the chords of the public 
heart, and, in consequence of the views which he announced 
in this speech, he was chosen by acclamation president of 
the Texas Secession Convention of 1861, in Avhich he advo- 
cated but one remedy — that Texas should resume her sov- 
ereignty and withdraw from the Union ; and he promptly 
accepted the appeal to arms. He was a gallant and efficient 
officer, and led the Eleventh Regiment with distinction 
through the campaigns of the Trans-Mississippi Depart- 
ment. 

In 1864, while still at the head of his regiment, he was 
elected Chief Justice of the Supreme Court to succeed 
Judge Wheeler, upon which he resigned his commission in 
the army and again took his seat upon the bench. At the 
close of the war he returned to Tyler and resumed the 
practice of his profession ; but his public services were 
soon again placed under requisition, and he was elected to 
represent his county in the State convention of 1866, and 
was made chairman of the judiciary committee of that 
assembly, in "which he took an efficient part in framing the 
Constitution under the Johnson reconstruction. 

In August, 1866, he was elected to a seat in the United 
States Senate, and repaired with his credentials to the Fed- 
eral capital, but being rejected, together with his colleao"ue, 
the venerable David G. Burnett, he placidly returned to 
Texas and confined his interest in public affairs to the re- 
demption of his State from the Moloch grasp of Federal 
oppression. 

From 1868 to 1870 he was professor of law in the High 
School at Gilmer, Texas, and upon the return of Demo- 
cratic ascendancy in 1874, he was reappointed by Governor 



280 BENCH AND BAR OF TEXAS. 

Coke to the office of Chief Justice of the Supreme Court, 
and, in 1876, was elected to the same position by the 
people. 

As a lawyer Judge Roberts is thorough and jDrofound. 
Tutored in the school of early labor, he began the study of 
his profession properly, and early acquired the requisite 
and infallible habits of success. His love of truth and his 
powers of research found no satisfaction within the bounds 
of superficiality and no lodgment upon the surface of in- 
vestigation ; hence he never rested with the comprehension 
of mere abstract propositions, but sought the origin, his- 
tory and philosophy of law. Subsidiary to these qualities, 
he possessed natural endowments of a high order. The 
natural bent of his mind is highly philosophical and re- 
flective. His keen and ready perception, his trained habits 
of analysis and logical synthesis, enabled him to eliminate 
principle from sophistry, to sift the real from the hypo- 
thetical, and present truth in the simple and plain robes of 
common sense. 

These qualities which had given him reputation as a 
lawyer and distinction as a district judge, he brought to the 
Supreme Bench enlarged and intensified by experience, and 
ripened by the sunshine of his meridian intellect. His 
duties as a Supreme Judge gathered and concentrated his 
powers, and he blended the ardor of devotion and the candor 
of rectitude with the calm depths of wisdom. 

His decisions are distinguished for their logical clearness, 
their search for truth and justice, and for their lucid expos- 
ition of principle. It was said of the brilliant Sergeant S. 
Prentiss that he " argued a case all to pieces;" and, while 
Judge Roberts always avoids mere dictums and questions 
non coram, it may be said, that as to its merits, he decides 
a case all to pieces. He leaves no question in doubt neces- 
sary for the vindication of justice, or to establish clearly 
the rights and relations of the parties. 

His opinions are numerous. They extend through fifteen 
volumes of the Texas Reports, and involve almost every 
important question that can affect society. His interpreta- 
tion of the rule in Shelly's Case, 21 Texas, 804, in which he 



OR AN MILO ROBERTS. 281 

hekl that in a deed made to a person for the term of his 
natural life, and at death to his lawful issue forever, the 
words "lawful issue" are words of purchase, and not of 
limitation, has been adopted by several law colleges. 

The following are among the important questions which 
his decisions have enlightened : The right of eminent 
domain, 22 Texas, 504; statute of frauds explained, 22 
Texas, 708 ; right to forfeit charter, 24 Texas, 80 ; man- 
damus against a State officer, 24 Texas, 317 ; law and 
justice compared, 25 Texas, 245; character of deceased 
evidence in murder cases, 43 Texas, 243; mandamus against 
commissioner of general land office — one of the finest 
opinions in Texas jurisprudence — 40 Texas, 647 ; rules for 
the courts of Texas — drawn by him — 47 Texas, 598. 
These cases will well repay the most careful study. 

In 1878 he was elected Governor of Texas, and his 
administration was characterized by the most patriotic, 
vigorous and successful efforts for the promotion of the mate- 
rial prosperity of the State, and not only gave unusual satisfac- 
tion to its citizens, but added luster and honor to its name 
abroad. In 1880 he was re-elected, and in his inaugural address 
to the seventeenth Legislature, said : "In review of the 
eventful career of Texas in the past, long an unknown land to 
the civilized world, emerging into existence in the gloom of a 
far-off country, cradled in revolutions and wars, growing up 
with a history filled with sore trials and grievous sacrifices, 
alternated by glorious achievements, both civic and military, 
famous for her great men and chivalric people, and now 
rising up conspicuously into general view, with her vast 
proportions and magnificent resources, and fairly entering 
upon the grand struggle for their development, I can but 
feel diffident of my ability to be equal to the task before 
me as your chief magistrate, now for the second time called 
to preside over the destinies of our beloved State. But 
sustained by an ardent zeal for her prosperity and future 
greatness, I cheerfully and hopefully accept the jDosition at 
the behest of a generous people, who have manifested their 
desire to place their public interests under my care and 
direction, as they have done before. It is only by the 



282 BENCH AND BAR OF TEXAS. 

wisdom of the Legislature, the harmonious co-operation of 
the executive officers, and the patriotic aid of the citizens 
that I can hope to be equal to the grave responsibilities 
imposed upon me, in the effort to make Texas what she 
should be in the near future — the great and prosperous 
State of the American Union." 

Serious efforts had been made, from time to time, to 
rejnove the capital from Austin, and the diversified and 
sometimes conflicting interest of the State had even caused 
the project of dividing it into several States to be discussed. 
To both of these enterprises Governor Roberts was strenu- 
ously opposed. He wished to preserve Texas in all the 
grandeur of its original integrity and in all the panoply of 
its power, and he appreciated the wisdom of the patriots 
who selected Austin as the seat of government. The de- 
struction of the capitol building by fire caused the question 
of removal to be agitated with increased ardor in some parts 
of the State during his first administration, and it was dur- 
ing his second administration that provision was made and 
a contract efiected for the erection of a capitol building 
which, when completed according to the specifications, will 
be next to the capitol at Washington, perhaps the most 
spacious and elegant edifice in America. This building 
was by the original contract to be constructed of limestone 
of a standard quality quarried near the citj' of Austin ; but 
it being recently ascertained that a sufficiency of the re- 
quired material could not be procured from the neighboring 
quarries, a board, authorized by the Legislature and consist- 
ing of the present Governor, Controller, Treasurer, and 
Attorney-General, has so amended the original contract as 
to cause the edifice to be built of a beautiful speckled fos- 
siliferous granite found in inexhaustible quantities in Burnet 
County. For this structure the State by the original con- 
tract agreed to grant to the contractors three millions of 
acres of the public lands in one body, which comprises a 
territory perhaps larger than the State of Ehode Island, and 
by the amended contract the contractors are to have in ad- 
dition the labor of five hundred convicts without cost. The 
buildiuir as estimated will cost over five million of dollars. 



ORAN MILO ROBERTS. 283 

and its erection, it is hoped, forever unifies the State and 
forever establishes Austin as its capital. 

There is no man in Texas more familiar with its people, 
its products, its varied characteristics, diversified interests 
and vast resources, than Governor Roberts, and while Gov- 
ernor of the State in 1881, he found time amidst his official 
duties to embody his knowledge in a valuable little book 
describing Texas, and the development of its advantages 
and resources. In this work he presents the causes of de- 
lay in the settlement of the country, which he attributes 
chiefly to its having no good port of entry on the Gulf 
Coast. He also presents an outline of its physical geo- 
graphy, the great variety of its productions, the comparison 
of its different belts, its natural resources, its natural wealth 
as found in its mineral waters and its water courses, the 
methods of cultivation of crops, the modes of transportation 
and of travel in Texas, its flora and fauna. In this work 
he shows that the pursuit of a train of useful business in 
Texas presents a reasonable certainty of success to every 
one who will intelligently and steadily follow it. 

He was a strenuous advocate and supporter of the educa- 
tional interests of the State, and in his message to the 
Legislature in 1881, said: 

"In all the grades, from the highest to the lowest, the edu- 
cational system should be regulated and adapted to the 
wants of the people in every condition of life j should have 
in all its parts and branches a well defined consistency in 
relation of one to the other in the different gradations, and 
should all be under the same supervision, government and 
control, to the extent that it is fostered by the State gov- 
ernment, not including private institutions of learnino-. 
The natural division in the gradation of schools, in order to 
meet the wants of the people is into three steps or degrees 
of education. The common schools for the millions, the 
academies for the thousands and the college or university 
for the hundreds. So it has been and ever will be ; and 
the encouragement and provision for each degree are equally 
essential in the effort to elevate society." His career as 
Governor was highlv beneficial to the State, and when he 



284 BENCH AND BAR OF TEXAS. 

retired from that office in 1883, he left the affairs of Texas 
in a prosperous condition. 

Ex-Governor Kobeits is a man of great amiability of char- 
acter. In social life he is bland, polished and refined, yet 
plain and unostentatious in his manners, and is a general 
favorite with the bar and people of Texas. His vast store 
of learning, his pure professional and social ethics, and his 
conversational powers, render him a welcome and interest- 
ing guest in every circle, and he is revered by the rising 
generations of the State. 

In 1883 he was appointed by the Board of Regents Pro- 
fessor of Law in the University of Texas — a position 
which he now holds, and for which he is peculiarly qualified 
by his knowledge of law and his eminent exemplification of 
the highest professional standard. 

Ex-Governor Roberts is now in his seventieth year, and, 
like the Grecian sage, has seen two generations pass awa}^ 
whose polity was enlightened by his wisdom, whose welfare 
was promoted by his counsel, and now the third catches the 
inspiration of his example. He is a living Gamaliel of the 
perfect manner of democratic customs and institutions, and 
his services are still eminently useful in the inculcation of 
the great principles of truth and the precepts of wisdom, 
as well as the lessons of a noble example, upon the minds 
of the rising generations of Texas ; and when he shall be 
summoned from the sphere of his earthly labors there is no 
one who will go up to the great high court with a clearer 
brief — with a brighter scroll of purpose, of duty and of 
performance. 



RICHARD COKE. 285 



RICHARD COKE. 



The distinguished subject of this sketch was born in Vir- 
ginia, in the year 1829. He had the advantages of a thor- 
ough education, and graduated with honor at William and 
Mary College in 1849. Having chosen the profession of law, 
he diligently and thoroughly prepared himself for the bar, 
and on obtaining his license in 1850 he removed to Texas and 
located at Waco, where he began the practice of his profes- 
sion and has since continued to reside. He was a young man 
of sterling qualities, steady habits, and popular manners, 
which, in conjunction with a strong mind and finished edu- 
cation, soon opened to him the avenues of success and dis- 
tinction. His professional ascent was rapid and brilliant, 
and in a few years he took a position in the front rank 
of the bar of his district. 

In 1865 he was appointed district judge, and so ample 
were the qualifications which he manifested in this capacity, 
and so able and efficient was his career upon the district 
bench, that, i«n 18(56, he was elected an associate justice of 
the Supreme Court. He held that position three years, and 
adorned it with an ability and purity honorable to himself 
and, at that time, particularly elevating to the jurisprudence 
of the State. 

At the general election held in December, 1873, in pur- 
suance of an act of the Legislature and the proclamation of 
E. J. Davis, then Governor of Texas, the Democrats elected 
the entire delegation of Congressmen, a large majority of 
the members of the State Legislature, and at the same time 
elected Richard Coke Governor of Texas by a majority of 
nearly fifty thousand votes. The Supreme Court was at 
that time composed of radical partisans, some of whom 
were exotics and adventurers, of military importation ; and 



286 BENCH AND BAR Or TEXAS. 

the leaders of the Republican party, having procured an 
individual to act as designated, concocted a fictitious case to 
enable the court to decide upon the political question as to 
the validity of the election. For this purpose one Jose 
Rodriguez, a Mexican, applied to Wesley Ogden, of the 
Supreme Court, whom the reporters contemptuously style 
the presiding judge, for a writ of habeas corpus, alleging in 
his petition that he was restrained in his liberty by one A. 
B. Hall, sheriff of Harris County, upon the charge of 
having voted illegally at the late election. The case came 
up on the trial of the writ under the style of Ex parte 
Rodriguez, reported in 39 Texas, 705, and Hon. Frank M. 
Spencer, district attorney for Harris County, was, in the 
absence of the Attorney-General, appointed by the court 
to represent the State. A number of gentlemen represent- 
ing the Austin bar, obtained the consent of the court to 
assist him. These were M. A. Long, C. S. West, Thomas E. 
Sneed, W. M. Walton and A. W. Terrell ; while A. J. Hamil- 
ton represented the relator. The counsel for the State 
promptly challenged the jurisdiction of the court upon the 
ground that the case was fictitious and was invented for the 
purpose of extorting from the court an opinion as to the 
constitutionality of the election. This position was sub- 
stantiated by the sworn testimony of Judge George Gold- 
thwaite, of Houston, who was cognizant of the facts, and 
by the personal averment of the district-attorney, who 
asked permission of the court to expose the fraud, or that 
Rodriguez be discharged. The motion to dismiss for want 
of Jurisdiction was overruled, whereupon the district 
attorney, representing the Attorney-General, indignantly 
withdrew from the case. The court then proceeded to the 
extremity of the issue and declared the election illegal and 
void, upon which Governor Davis issued his proclamation 
prohibiting the assembling of the newly elected Legislature. 
That body, however, promptly convened on the day ap- 
pointed for its meeting; yet the Governor declined to 
receive any communication from it, and appealed to General 
Grant, then President of the United States ; but he declined 
to interfere. Davis finally vacated -the Governor's ofiice 



RICHARD COKE. 287 

and Governor Coke took peaceable possession of it. The re- 
porters, in a note to this case, aptl}'' remark that it belongs 
to the political historian to perpetuate the memory of the 
events and circumstances of this case ; and as to the corre- 
spondence and details connected with it, and the observa- 
tions which it suggests, the author of this work will likewise 
pass the task of commemorating them to that functionary. 
It was, as the reporters observe, a purely partisan political, 
and not a judicial question. 

On the 15th of January, 1874, Governor Coke and Lieu- 
tenant-Governor Hubbard were duly inaugurated and in- 
stalled in their respective offices, and the Legislature 
immediately enacted an amendment to the Constitution 
reorganizing the Supreme Court and increasmg the number 
of judges to five, upon the adoption of which Governor 
Coke promptly reorganized the court and removed the 
three judges of Ex parte Rodiguez fame. His appointments 
to the bench and to all other important positions were 
highly judicious and felicitous, and during his administra- 
tion the entire machinery of the State government, 
wrenched from partisan control and the clogs of imbecility 
and corruption, was again brought into smooth and har- 
monious motion. New avenues of prosperity were opened 
up to the people, new enterprises were stimulated, and 
new hopes inspired, until the highest anticipations of pros- 
perity seized upon the minds of all classes of people. 
Railroad communications of the most vital importance were 
established, and a constant tide of immigration flowed into 
the State. 

The people of Texas smarted under the exotic Constitu- 
tion forced upon them by the military authority and its 
allies in the State, and it was under the auspices of the ad- 
ministration of Governor Coke that the excellent constitu- 
tion of 1875 was framed and adopted, and which forms 
the present organic law of the State. This constitution 
effected a change in the tenure of office, and in April, 1876, 
the Governor and Lieutenant-Governor were re-inaugu- 
rated; but in May Governor Coke was elected to the 
United States Senate. He, however, continued to perform 



288 BENCH AND BAR OF TEXAS. 

the duties of the gubernatorial ofBce until December, and 
on the 4th of March, 1877, took his seat in the Senate, to 
which he has been twice re-elected. 

In his second message to the Legislature in January, 
1875, in referring to the state of affairs existing at the 
time of his first inauguration and the great change wrought 
by Democratic policy, he said: " The circumstances under 
which you assemble are auspicious. How striking the con- 
trast with those which surrounded your first convention, 
one year ago? Then darkness and gloom brooded over 
the land, and over the hearts of the people. Forebodings 
of danger to popular liberty and representative govern- 
ment caused the stoutest and most patriotic among us to 
tremble for the result. A conspiracy bolder and more 
wicked than that of Catiline against the liberties of Kome, 
had planned the overthrow of free government in Texas. 
The capital and its purlieus were held by armed men under 
command of the conspirators; and the treasury and de- 
partment officers, with all the archives of the government were 
in their possession. Your right to assemble in the capitol, 
as the chosen representatives of the people, was denied, 
and the will of the people of Texas scoffed at and defied. 
The floors of the halls in which you now sit, had been ex- 
amined by the conspirators, and it had been ascertained 
that the armed forces entrenched in the basement beneath 
could pierce them with their missils, if necessary to attack 
you. The President of the United States was being im- 
plored to send troops to aid in overthrowing the govern- 
ment of Texas, chosen by her people by a majority of fifty 
thousand. The local and municipal officers throughout the 
State, iii sympathy with the infamous designs of these 
desperate and uiiscinipulous revolutionists, taking courage 
from the boldness of the leaders at the capitol, were re- 
fusing to deliver to their lawfully elected successors the 
offices in their possession. A universal conflict of juris- 
diction and authority, extending through all the departments 
of government, embracing in its sweep all the territory 
and inhabitants of the State, and every question upon 
which legislative government is called to act, was imminent 



RICHAKD COKE. 289 

and impending. The treasury of the State was bankrupt ; 
even trust funds, protected by especial guarantees of the 
Constitution, had been plundered. The credit of the State 
was deeply dishonored, and warrants on the treasury were 
being hawked for sale on the streets of the capital at ruin- 
ous discounts. All was doubt, suspense and anxiety; and 
Texas seemed on the verge of a convulsion, the consequence 
of which no one could foresee, and brave men trembled to 
contemplate. 

" How changed the condition now ! All is bright, hopeful 
and cheering. Free government is established; the sov- 
ereign rights of the people vindicated ; public confidence 
restored; State credit redeemed; official accountability 
recognized and enforced ; the country prosperous and the 
people contented. While much remains to be done in the 
solution of the great questions of race, education, mon- 
opoly and taxation, and many evils entailed by former 
maladministration, as well as those that were inevitable se- 
quences of the great social and political revolution through 
which we have passed, still remain with us ; yet the operations 
of our governmental system are healthy and steady, and in 
due time, with the lights which experience and a more inti- 
mate knowledge of the subjects to be dealt with, will throw 
upon them at each step of its progress, I have no fears 
that a solution of them in accordance with correct princi- 
ples and good government, and in the interest of humanity 
and progress will be evolved, and that abuses in adminis- 
tration and errore of legislation will be corrected and re- 
formed. Abuses which have taken deep root, and errors 
which have been sanctioned by years of acquiescence, can not 
be eradicated and cured in a month or a year. A State which 
has been rocked with the throes of revolution for twelve 
years, whose society, laws and institutions have been un- 
settled and in a great measure overturned, can not, in a 
short period, be adjusted in its new relations, so that its 
machinery of government will run smoothly, witliout jarring 
or attrition. Time is necessary after the health of the bod}' 
politic is restored, to do this, to fit the parts to each other, 
and to adapt the whole to the new conditions of society. 

19 



21)0 BENCH AND BAR OF TEXAS. 

An impatient and unreasoning expectation of immediate 
and thorough reform in government, upon a change in ad- 
ministration, after a long period of misrule and unrest, 
before a policy can be developed and bear its legitimate 
fruits, will always meet disappointment. The people of 
Texas have their government in their own hands, and its 
excellence will depend upon their wisdom. 

" Looking be3'^ond the workings of our own State govern- 
ment, the present prosperity and splendid future of Texas, 
into the broader field occupied by the National government, 
we find abundant evidence in the recent unprecedented up- 
rising of the American people, that there, too, the great 
work of reform has commenced, — let us hope, to be pros- 
ecuted until honest, economical administration, inside of 
the limitations of the Constitution, under jnst and equal 
laws is attained; until the machinery of the Federal gov- 
ernment is no longer used to stir up strife and conflict in 
the States, and create necessities, real or fancied, for Fed- 
eral intervention in affairs of purely local concern, and the 
moral and intellectual forces in each State are ' let alone ' 
to contend, without outside interference, for the mastery in 
directing and controlling its government ; until gunboats and 
battalions shall no longer, under the Federal flag, menace 
American cities and the lives and liberties of American 
citizens ; and free suffrage is not intimidated and overawed 
on pretexts invented and brought about by Federal agents ; 
until American citizens are protected in their lives and 
property against foreign desperadoes, robbers and thieves, 
and a corrupt Indian ring ceases to fatten on the blood and 
toil of the frontier ; until the burdens of government shall 
rest equally, according to wealth and population, upon 
every section of the Union, and capital and monopoly shall 
cease to be the ruling power of this government ; until 
rings and combinations shall no longer be permitted to 
plunder the treasury and manipulate the policy of the gov- 
ernment to their advantage, and official accountability and 
integrity is restored; until the farmer and producer is 
emancipated from thraldom to the manufacturer and capi- 
talist, and labor meets its legitimate reward ; until each 



RICHARD COKE. 291 

State in the Union is recognized as the equal of any other 
State, and all share alike in the benefits of a common srov- 
ernment, while none shall bear more than its just share of 
the burdens; until the Constitution shall be the supreme 
law for all the States, South as well as North, for Lou- 
isiana and Massachusetts alike, and the national flag shall 
symbolize to the people of both the beneficence as well as 
the power and greatness of the republic, and shall equally 
challenge their admiration and affections ; and last, and 
above all, until the people of the States of the South can 
feel, as it is the most earnest desire of their hearts to feel, 
that they, too, have an interest in the common government, 
a pride in its greatness and glory, a joy in its prosperity, 
a destiny wrapped in its perpetuity, and in it an inheritance 
for their children, rich and priceless. 

" The late popular manifestations point to these as possible, 
even probable, results in the near future. We think we see 
in this great revolution in which the people have thrown 
down and trampled upon their former leaders, the begin- 
ning of a real union, a new reconstruction, not devised by 
crafty, heartless and corrupt politicians, in the interest of 
party and based on revenge and sectional hate ; not written 
in statute or covenant, but welling up from the hearts of 
the people. North, East, South and West, prompted by 
love of country, of liberty and of free government, and by 
a recognition of the perils which surround them, to which 
they have just been awaked — a reconstruction cemented 
by a broad and comprehensive patriotism, including all the 
States with all their people, which, forgetting the past, 
remembers only that we are now citizens of a common 
country, bound in a common destiny and menaced with a 
common danger. Such reconstruction means peace, recu- 
peration, building up, fresh energy and renewed hopes of a 
bright future for the South, home-rule for all the States, 
honest constitutional government for the Union, and pros- 
perity and common brotherhood for the people. While 
standing unyielding by the principles of government we be- 
lieve to be correct, and maintaining inviolate the faith that 
is in us, we should put our feet upon every narrow and 



292 BENCH AND BAR OF TEXAS. 

sectional feelinor, and embrace in our efforts and aspirations 
the glory and advancement of the whole country." 

These sentiments are peculiarly applicable to the political 
revolution of 1884, and seem to have been uttered with the 
inspirations of prophecy. The streak of light which he 
saw stretched along the political horizon in 1874, has 
spread itself over the national sky, and it is well that he 
occupies a position in which, as the representative of his 
people, he can place the seal of their devotion upon the 
happy sequences of the consummation. As a United States 
Senator he has been true and faithi'ul to the interests of his 
party and his people, constant in his efforts to promote the 
public welfare, and able in the advocacy of the principles 
whose triumph has burnished the hopes and illuminated the 
prospects of the American Union. 

His mental organization is of a high order and his pro- 
fessional learning is thorough. His arguments and de- 
cisions evince, both in exposition and research, the qualities 
of a profound lawyer and able judge, and are impressive 
of some of the most important features in Texas jurispru- 
dence. Among these is his decision in the case of Stroud 
V. Springfield, 28 Texas, 649, in which he describes the neces- 
sary qualities and merits of ancient deeds, and the evidence 
required to establish old landmarks and boundaries of sur- 
veys. Old deeds and field not-es of surveys must be free from 
suspicion, must come from the proper custody, and must 
have been acted upon, in order to give them a genuine 
character and the merit of evidence. These questions are 
discussed with great ability, and this decision should be 
studied and learned by every settler and land-owner in the 
State. 

Viewed from whatever standpoint, in every sphere of his 
life, as governor, judge, senator or citizen. Senator Coke 
is one of the most eminent of Texans. As a lawyer and 
statesman he has but few superiors in the country, and as 
a patriot, none. 



JAMES H. BELL. 293 



James H. bell. 



James Hall Bell was born in the town of Columbia, 
Brazoria County, Texas, on the 21st of January, 1820. 
His father, Josiah H. Bell, was a native of Kentucky, and 
was one of the first of Austin's colonists. He enjoyed the 
highest confidence and esteem of the famous pioneer, and 
when Austin went to the City of Mexico in 1822 to obtain 
a confirmation of his empressario grant from the Mexican 
government, which had just thrown off the Spanish yoke, 
he left the aflairs of the colony in the hands of Mr. Bell. 
During bis long absence, which was constrained by the 
conflicting factions at the Mexican capital, the spirits of the 
colonists became greatly depressed, and in consequence of 
a general feeling of insecurity, many of them abandoned 
the country and returned to the States. But the devoted 
energy and firmness of Mr. Bell, who had also been 
appointed an alcalde by Governor Trespalacios, maintained 
the colonial organization until Austin's return, after beinff 
a year absent. He died in 1838. 

James H. Bell was educated at Bardstown, Kentucky, 
where for several years he enjoyed excellent advantages, 
and on returning to Texas began the study of law in the 
oflSce of William H. Jack, in Brazoria County. In 1843 he 
went to Cambridge University, Massachusetts, and com- 
pleted his education in the law department of that 
institution. 

In 1847 he entered upon the practice of his profession 
in Brazoria County, and in 1852 was elected judge of the 
District Court. He held this position until his election to 
the Supreme Bench in 1859, and won the reputation of 
being an eflBcient, just and able judge. He held the office 



294 BEfJCH AND BAll OF 'PTXAS. 

of associate justice of the Supreme Court until 1864, when, 
at the expiration of his term, he resumed his practice. 

Judge Bell performed an eminent service for his people 
during the troubles which occurred upon the election of 
Governor Coke to succeed E. J. Davis. The latter called 
upon General Grant for aid, and invoked the presence of 
Federal troops to maintain himself in the gubernatorial 
chair. Judge Bell proceeded immediately to Washington, 
and stated to the authorities the true state of affairs, and 
in consequence of his reputation, the influence of his per- 
sonal qualities, and the manifest sincerity and truth of the 
views he presented, the President declined to interfere. 

During the last two or three years he has been engaged 
chiefly in mining operations in Mexico, and is at present in 
London for the purpose of promoting these enterprises. 

As a lawyer Judge Bell is thorough and varied in his ac- 
complishments. He is familiar with all the principles of 
legal science ; and as a judge he was an excellent expositor 
of legal principles, quick to discover the true course of law 
and justice, and no less vigorous in pursuing it. These 
features eminently characterize his reported decisions, and 
their lucid determination of the questions they involve will 
always render them important and leading in the jurispru- 
dence of the State. His personal attributes are no less 
marked than his professional. He is kind, courteous and 
social ; and the same personal qualities which crowned with 
success his voluntary diplomacy at Washington in the in- 
terest of his people, assert ^emselves in the merited es- 
teem of his friends, neighbors, and fellow-citizens. 



A. H. WILLIE. 205 



A. H. WILLIE. 



Asa Hoxie Willie, chief justice of the Supreme Court of 
Texas, is a native of Georgia, and was born in Wilkes County 
on the 11th day of October, 1829. His father, James Willie, 
was a native of Vermont, and bis mother was a daughter of 
Asa Hoxie, a Quaker of Barnstable, Massachusetts. After 
the death of his father, in 1833, his nurture and training de- 
volved entirely upon his mother, and his education depended 
upon her exertions and the prudent management of her 
limited means; but she was a woman of energy and deter- 
mination and devoted herself to the task with all the fond- 
ness and fidelity of maternal affection and womanly virtue. 
Withher his education began and she promoted it with untir- 
ing zeal and self-sacrificing exertion, not only in directing 
his intellectual development, but in cultivating the feelings, 
aspirations and sentiments which determined the qualities of 
his character. The history of distinguished men in every 
age of the world teems with tributes of gratitude and ven- 
eration to the influence and memory of noble mothers — 
the work accomplished by the hallowed benisons of mater- 
nal devotion, and Judge Willie owes his success in life to 
the same inspiring source. 

He was educated at the academy at Washington, Georgia, 
and while the slender means of his mother would not permit 
her to give him the advantages of a collegiate course, he re- 
ceived the best education that an excellent high school 
could afford, and in 1846 removed to Texas and located in 
the family of his maternal uncle. Dr. Asa Hoxie, who re- 
sided near Independence, in Washington County. In 1847 
he began the study of law in the office of his elder brother, 
James Willie, at Brenham, and in 1849 was admitted to the 
bar before he had attained the age of twenty-one years, by 



296 BENCH AND BAR OF TEXAS. 

authority of a special act of the Legislature, and commenced 
the practice of law in copartnership with his brother. 

His thorough training and energy soon asserted them- 
selves, he rose rapidly in his profession, and in August, 
1852, was elected attorney for the Third Judicial District, 
which at that time comprised the counties of Washington, 
Burleson, Milam, Bell, MeLennon, Falls, Limestone, Free- 
stone, Lee, Robertson and Brazos, and at the expiration of 
his term resumed his general practice. 

In 1857 he removed from Brenham to Austin, and per- 
formed the duties of Attorney-General, whilst his brother, 
who at that time held that office, was indexing the criminal 
cbdes and supervising their pnblication, a service to which 
he had been appointed by the Governor prior to his election. 
In 1858 he removed to. Marshall, Texas, and formed a co- 
partnership with Col. Alexander Pope, his sister's husband 
which continued until he was promoted to the bench. 

During the political agitation, which culminated in the 
civil war, his sympathies were strongly enlisted on the side 
assumed by his native and adopted State, and when hostilities 
began he promptly volunteered his services, and took a 
position on the staff of General Gregg, with whom he 
served until the death of that o:allant officer. 

In June, 1866, he was elected associate justice of the 
Supreme Court. The other members of the court, electe(i 
at the same time, were George F. More, Richard Coke 
George W. Smith and S. P. Donley, all of whom were 
removed in 1867 by the military authority, which during 
that year was placed in command of all the departments of 
the State government. Judge Willie then removed to 
Galveston, and formed a copartnership with Judge T. F. 
Crosby, and afterwards with Judge C. L. Cleveland. On 
the recovery of the control of the State by the people in 
1872, he was elected a representative at large for Texas in 
the Congress of the United States, and at the expiration of 
his term declined are-election, and returned to his practice. 
In November, 1882, he was elected chief justice of the 
Supreme Court of Texas by the largest vote ever given 
to any candidate in the State. 



A. H. WILLIE. 297 

While wearing the manners of an apparently cold and 
stern exterior, he is a kind-hearted, sympathetic man, and 
there are few men in Texas who have more devoted friends. 
This, together with his known ability, accounts for the 
hearty support which he has received for the most impor- 
tant positions, and the high office he now holds. He was 
married in 1859 to an estimable lady, Miss Bettie Johnson, 
of Brandon, Mississippi, a step-daughter of William C. 
Harper, a lawyer of that place, and has a large fiimily of 
children. 

With a strong mental organization, combined with great 
physical endurance, the former trained to the constant ten- 
sion of intense study, and the latter cultured by a uniform 
moral regimen, Judge Willie is capable of great intellectual 
labor, and never wearies in his search for the proper solution 
of every question which calls for the exercise of his judg- 
ment. He loves his profession with the fervor of a devotee, 
and has vigorously employed a remarkable energy and 
industry in the attainment of a mastery of the great prin- 
ciples of law in all their bearing and application. He 
possesses all the qualities and characteristics of an excellent 
judge, and his decisions are of the highest order of judicial 
exposition. His arguments show that he invariably mastered 
the elements of his cases, both as to the law and the facts 
which compose their merits, before he went into their trial ; 
and they evince another quality exemplary in the highest 
degree, and one which never fails in the end to win the 
confidence and respect of courts and juries and the highest 
laurels of success. He never urges a point of law which is 
not well taken and supported by authority and reason, and 
never asserts a fact that the evidence does not sustain. 

These traits which gained him popularity and success at 
the bar, develope themselves on the bench in a sense of 
justice, candor and conscience, and a purely judicial treat- 
ment of a question, which constitute the highest qualities 
of a judge. As a lawyer he strikes straight and full in 
front at the crest of opposition, and as a judge, straight at 
the merits of the case. Uutan^lino: the webs of circum- 



298 BENCH AND BAR OF TEXAS. 

stance, he twines the cable of truth from the pure elements 
of law and fact ; and while the grounds of all his opinions 
are clearly defined, many of them are models of logical 
reasoning. 

His decisions are numerous, and many of them have 
largely shaped the present status of Texas jurisprudence. 
The following cases contain principles of first impression, 
and are selected on account of the ability of the opinions : — 

G. H. &YL. Railway Co. v. Allison, 59 Texas, 193 — A 
carrier undertaking to transport goods to a certain destina- 
tion can not contract for a limitation of his responsibility 
to a portion of the route, and any deviation in the route or 
mode of conveyance from those specified in the agreement, 
made at any point during the transportation, will preclude 
him from the benefit of any stipulations against liability. 

Schneider & Bro. v. Bray, lb. 668 — Notwithstanding 
the principle that when property exempted from execution 
is voluntarily exchanged for a species which is not exempted, 
the exemption is lost, the beneficent object of the law in 
regard to homesteads can not thus be defeated, and one 
homestead may be exchanged for another and the exemption 
will attach to the newly acquired home. 

Franco-Texas Land Co. v. Saigle, lb. 339 — A charter 
granting to a corporation the right to transact business be- 
yond the limits of the State creating it, confers the power 
of performing only such acts as are usually done through 
/ directors and agents, and not the capacity to exercise cor- 
/ porate functions. Hence, persons chosen as directors at an 
election held beyond the limits of the State which gave it 
existence are not de jure oflScers of the corporation. 
Neither are they de facto officers, for that quality can be 
derived only from a colorable right impaired by informality 
or irregularity in the appointment, otherwise the bold asser- 
tions of a mere usurper could not be questioned. 

G. H. & S. A. Railway Co. v. Temple — An employe 
assumes all the risks ordinarily incident to his business, and 
if he goes into service or continues in it knowing that the 
nature or instrumentalities of his labor are unsafe and dan- 



A. H. WILLIE. 299 

gerous, the employer is not liable for any injuries he may 
receive ; but if the danger from defective machinery is not 
apparent the master is liable. 

Hildebrand v. McMahan, lb. 450 — The constitution vests 
in the District Courts exclusive jurisdiction over the en- 
forcement of all liens created by the act of the parties, 
but not over those effected by operation of law and the 
foreclosure of which follows as a matter of right without 
the intervention of a verdict. Over the latter justices of 
the peace have concurrent power within the limits of their 
jurisdiction. 

T. &P. Railway Co. v. McAllister, lb. 349 — A petition to 
remove a cause from the District Court of a State to the 
Circuit Court of the United States possesses the character of 
a plea, and the State court has the power to determine the 
sufficiency of its merits and refuse it, if found inadequate 
and a mere pretext for delay or change of jurisdiction. 

Erwin v. Blanks, 60 Texas, 583 — The conflicting clauses 
ill the Constitution which fix the same amount as the maxi- 
mum of the jurisdiction of the County Court and the mini- 
mum of the jurisdiction of the District Court vest the two 
courts with concurrent jurisdiction over the common amount 
unless it be involved in the trial of the right of property 
levied on by a writ of execution, sequestration or attach- 
ment; in this case the jurisdiction is specially conferred 
upon the District Court. 

Carter and Rusk v. Conner et al. lb. 52. — Marital rela- 
tions in Texas have been assimulated in many respects to 
ordinary partnerships, and a suit against the survivor may 
subject community property to the payment of community 
debts without making the heirs of the deceased husband, or 
wife, parties to the action. 

Splawn V. Chew, lb. 532 — When a person insures his 
life for the benefit of other persons, he has no power to as- 
sign the policy, or change the beneficiaries, unless he has 
contracted with the insurer for the reservation of that 
right; in that case the polic}^ will be interpreted as other 
authorized contracts, and the law will respect the exercise 
of the reserved control. 



/ 



300 BENCH AND BAR OF TEXAS. 

Ezell V. Dotlson, lb. 331 — A married woman cau not by 
virtue of living separate and apart from her husband and 
his refusal to join her, bring an action to recover damages 
for an assault and battery committed upon her during cov- 
erture. The only instance in which she can maintain an 
action for community property without the joinder of her 
husband is when he has abandoned her and left her depend- 
ent upon that property for support. 

Jones V. Jones, lb. 455 — In Texas the District Courts can 
decree divorces between bona fide residents for causes aris- 
ing beyond the limits of the State, and it is not necessary 
that the acts should be alleged with the certainty of an in- 
dictment, notice of the charges being sufficient ; and the 
laws of Texas hold an imputation of unchastity to be a 
sufficient cruelty to justify a dissolution of the bonds of 
matrimony, justly considering wounds affecting the mind 
and character to be more intolerable than those inflicted 
upon the person. 

McCue V. Blair, lb. 169 — If a person whose mental fac- 
ulties are suspended by intoxication be induced to swallow 
/spirituous liquors to such excess as to endanger his life, the 
persons taking advantage of his helpless condition and men- 
tal darkness and imposing the draught upon him must answer 
to him in damages for the injury that ensues, and to his 
family if his death should be the result. 

Seligson & Co. v. Brown & Brown, 61 Texas, 180 — 
An insolvent debtor can not exchange property liable to be 
subjected to the payment of the claims of his creditors for 
that which is beyond their reach, and thus in place of cer- 
tainty substitute a mere chance payment depending upon 
his own discretion and convenience, for that would destroy 
all check upon fraudulent conveyances. 

McKamey v. Thorp et al., lb. 648 — When property is 
purchased with money belonging to the wife, and the con- 
veyance is not made for her use and benefit, and contains 
no indication of her ownership, the legal title is lodged 
in the community of herself and husband, but a resulting 
trust arises in her favor, and she is the equitable owner of 
the property. The registration laws which render all un- 



A. H. WILLIE. 301 

[•ecorded conveyances void as against subsequent purchasers 
for value without notice, do not apply to resulting trusts, 
IS this equity can not be spread upon the record, and the 
3quity of the wife is not affected by an execution sale under 
1 judgment against the husband, although the purchaser 
tiad no notice of the resulting- trust. 

Willis V. Missouri Pacific Eailway Company, Ih. 432 — 
A. State can not give to its laws an extra-territorial effect. 
When an action is transitory and is based on personal in- 
juries recognized by universal law it may be brought 
ivherever the aggressor is found, but statutory actions 
must be brought in the State in which the statute exists 
and the injury occurred. 



302 BENCH AND BAR OF TEXAS. 



Thomas J. Devine. 



Thomas J. Devine was born of Irisfi parentage in Hali- 
fax, Nova Scotia, on the 28th of February, 1820. His 
early opportunities for an education were liberal, and in 
addition to his English studies he acquired considerable 
proficiency in the Latin and French languages ; but he was 
thrown in early life upon his own resources, and when but 
fifteen years of age emigrated to Florida and engaged as a 
clerk in a mercantile house in Tallahassee ; but his genius 
and aspirations found no congenialty in the mental re- 
straints and fettering routine of a life of trade. The 
cravings of his mind and the soaring flights of his youthful 
ambition impelled his exertions to reach a more compati- 
ble sphere, and, in 1838, he began the study of law in the 
office of Truxton Davis, a prominent lawyer of Woodville, 
Mississippi. In 1840 he went to Lexington, Kentucky, 
where he continued his studies and attended lectures in the 
law department of Transylvania University, in which he 
graduated in 1843 and obtained his license to practice from 
the Supreme Court of Kentucky. During the same year 
he emigrated to Texas and located at La Grange, in Fayette 
County, in a society composed of hetrogeneous elements, 
and exposed to Mexican and Lidian depredations. This 
unsettled state of aifairs was repugnant to his cultured 
taste and studious habits, and he soon afterwards removed 
to San Antonio, where he established his law office, and has 
ever since resided there. Here he entered at once upon a 
successful professional career, and soon acquired a high 
reputation as an able and thorough lawyer. In 1844 
he was elected city attorney, and held that office 
by successive re-election until 1851, when he was 
elected district judge of the Bexar district. He was 



THOMAS J. DEVINE. 303 

re-elected to the bench in 185fi, and held his posi- 
tion until the outbreak of the civil war. He was a lead- 
ing member of the Texas Secession Convention of 1861, 
and was appointed one of the committee of public safety 
to confer with General Twiggs, the commander of the 
United States troops in Texas, and to demand the surrender 
of all government arms, ammunition and military stores, and 
the immediate removal of the Federal troops from the 
State. This, in conjunction with two other gentlemen of 
the committee, he accomplished with the skill of a thorough 
deplomatist, and received the commendation and thanks of 
the Convention. Being an ardent devotee and supporter 
of the Southern cause, and a lawyer of eminent ability, he 
was soon afterwards appointed Confederate States judge for 
the Western District of Texas. The functions of this office, 
though necessarily limited in extent and application during 
the time of war, he performed with the utmost fidelity, and 
with a view of the imi^ortance of putting the machinery of 
the new court in proper motion. In 1863 his admirable 
qualities of statesmanship and knowledge of international 
law was again called into requisition. At the request of 
General E. Kirby Smith, he proceeded to the City of 
Mexico, and succeeded in arranging amicably the threatened 
troubles between the Mexican government and the Confed- 
erate States. In 1864 there was great dissatisfaction in 
Texas, in consequence of the conscript law and the embaro^o 
laid by the Confederate government upon the trade between 
Texas and Mexico, and serious troubles were threatenincr to 
arise between the government of the State and the Confed- 
eracy, but the patriotism, ability and pacific qualities of 
Judge Devine arrested all evil, and, having promptly re- 
paired to General Smith's headquarters, in Arkansas, he 
arranged the whole matter amicably and satisfactorily to all 
parties. 

Thus as a judge and peace-maker this good man united 
in his person and in his office, the noblest qualities of a 
citizen and patriot, and rendered to his country the happiest 
of all services — the promotion of unity and concord, and 



304 BENCH AND HAIi OF TEXAS. 

the concentration of its powers tind energies against the 
common enemy. 

At the termination of the war, he saw no hope for his 
country through the ck)uds which settled over it, and took 
up his abode in Mexico; but Texas was his home, to her 
he owed all that he was, or had been, and his heart was 
chained to her destiny. He returned to San Antonio 
within a few months ; but his known ability, prominence and 
influence as a Southerner, drew upon him tlie shafts of re- 
venge, and he was arrested by the Federal authorities and 
incarcerated in Fort Jackson, at the mouth of the Mississippi, 
where he was confined four months. He was finally released 
bv his sivins: bond that he would confine his residence to 
San Antonio, a duress and restraint which was virtually an 
imprisonment. Here vengeance still pursued him and he 
was twice indicted for high treason, being the only person 
in the South, except Mr. Jefl'erson Davis, who received that 
notoriety. But having quieth% yet defiantly, resumed the 
practice of his profession, he placidly awaited the abate- 
ment of the storm, and w\atched with anxious gaze the 
social and political wreck which it left in its pathwa}'. 

In 1873 he was appi)inted by Governor Coke an associate 
justice of the Supreme Court of Texas, but after a short 
but eminent career upon the bench he found that the duties 
of the bar, which he had so long cultivated and cherished, 
were more congenial to his taste as w'ell as far more remu- 
nerative, and in 1875 he resigned and returned to his 
practice in San Antonio, which he has since pursued with 
vigor and uninterrupted devotion; and with the exception 
of being a prominent candidate for Governor in 1878, he 
has declined to permit his name to be used in connection 
with any political otfice. 

Judge Devine is considered one of the ablest lawyers at 
the Texas bar. He is a man of intellectual vigor and 
superior mental endowments, and while he possesses much 
of the humorous vivacity and spontaneous repartee charac- 
teristic of his parentage and the race from which he sprung, 
candor and sincerity are ruling traits of his character. He 



THOMAS J. DEVINE. 305 

is patient and thorough in his investigations and an excel- 
lent legal counselor. His uniform courtesy and placid 
disposition and his aptness on proper occasions to adorn 
with good-natured jest the dull and monotonous features of 
legal argument render him an engaging advocate, and give 
him great power before a jury, while his oratory, embellished 
with the most captivating qualities, often rises to the highest 
l)lain of elocution. 

As a judge his decisions are characterized by an independ- 
ence of judgment, and a freedom from the restraints 
of doubtful precedent, that commend them to the practi- 
tioner as the emanations of profound learning, thorough 
research, and conscientious conviction. He held the scales 
of justice in even balance, and no feature of wrong, how- 
ever speciously attired, could disturb the equitable poise. 
His judgments fixed upon the firm basis of law and right 
yielded only to the dictates of mercy. 

In private life Judge Devine possesses the noblest quali- 
ties. Kind, charitable and public-spirited, he is always 
ready to respond to every meritorious demand as a friend, 
as a ueio;hbor and as a citizen. 



306 BENCH AND BAR OF TEXAS. 



JOHN Ireland. 



The distinguished subject of this sketch was born of 
yeoman parentage, in Hart County, Kentucky, on the 1st 
of January, 1827. His educational advantages were con- 
fined to the common schools of the country; but, actuated 
by a spirit of determination and self-reliance which buoyed 
him above the restraints and gyves of circumstance, his 
endeavors were fixe.d upon the purpose of achieving an 
honorable place among men ; and bursting the trammels of 
his early youth, he sought to obtain in the realities of life 
that knowledge of which his school facilities had afforded 
him but a thirsting taste. 

In 1847 he was appointed deputy sheriff of Hart County, 
and about a year afterwards was elected constable, which 
position he held for three years. The knowledge of pro- 
cess and legal business, which the duties of these offices 
afforded him, directed his ambition to the bar, and in 1851 
he began the study of law in the office of Robert D. Murray 
and Henry C Wood, at Mumfordsville. He at once im- 
pressed into the service of his efforts those habits of close 
application and patient industry which have attended him 
through life, which have constructed the sure steps of his 
advancement and formed the sesame of his great success. 
So constant and thorough was his progress in mastering 
the general principles of the common law that in scarcely 
more than one year he was admitted to the bar and entered 
upon his practice; but casting about for a new field and 
more inviting prospects, he was attracted by the glittering 
future and allurements of the rising empire of the South- 
west, and in 1853 removed to Texas and settled in Seguin, 
where he began the erection of his fame, and which has 
ever since been his unofficial home. Here his sterling qual- 



JOHN IRELAND. 307 

ities were recognized by his fellow-citizens, and in 1858 he 
was elected mayor of the town. At the approach of the 
foreboding clouds of the civil war, he ardently espoused 
the cause of his section and State, and favored the prompt 
resumption of its sovereignty, and its withdrawal from the 
Union. He was a member of the Constitutional Conven- 
tion of 1861, and as soon as the status of political affairs 
were settled in his State he enlisted as^a private in the vol- 
unteer army of the Confederacy. The same purpose and 
devotion to duty which had characterized his professional 
career marked him as an eflScient soldier and invited pro- 
motion. He was made successively captain, major and 
lieutenant-colonel, and was an officer of high standing. 
His services extended throughout the campaigns of the 
Trans-Mississippi Department, and at the close of the war 
he returned to the practice of law at Seguin. 

In 1866 he was a member of the convention assembled 
to form a Constitution for the State in conformity with the 
Johnson policy of reconstruction, and was soon after 
elected judge of his judicial district, but was removed on 
the usurpation of military power in 1867. In 1873 he 
served as a member of the House in the Thirteenth Leo-is- 
lature, and in the fourteenth he was a member of the 
Senate. In 1875 he was appointed associate justice of the 
Supreme Court, but was retired by the new Constitution of 
1876, which required the court to consist of only three 
judges. His decisions are found in the forty -fourth and 
forty-fifth volumes of Texas Reports. His assiduous habits 
and fondness for close analytical investigation, his natural 
inquisitiveness of mind, firm and well grounded convictions 
through legal training, and ample resources of both 
principle and precedent, made him an excellent Supreme 
judge, and his decisions manifest a steady and profound 
search for truth and justice. His opinion in Lewis v. 
Aylett, 45 Texas, 190, first settled the principle in Texas 
jurisprudence that real estate can not pass by a nuncupative 
will. In this case he traces the power of devising real 
estate from its orio;in in the Statute of Uses, throuo-h its 
enlargement by the abolition of feudal tenures, when the 



308 BENCH AND BAR OF TEXAS. 

custom of making nuncupative wills was engrafted upon it 
by necessity, to which it had always been restricted. He 
showed that there was nothing in the jurisprudence of 
Texas that warranted the extension of the power of nun- 
cupative devise to real property under the allodial tenures 
of the State, and in regard to the competency of devisees 
to establish a verbal devise of personal estate he adds : — 
" Every dictate of humanity, and the daily lessons of life 
warn and teach us of the folly and impropriety of placing 
not only the fortunes, but the lives of the sick, aged and 
afflicted at the mercy and -avarice of the corrupt and the 
vicious. That a code of laws should allow devisees to go 
before a clerk or judge on an ex parte proceeding, and 
prove a verbal will giving to strangers an estate, leaving 
kindred and family without provision, can not be readily 
admitted, and it would deserve universal condemnation." 

So confirmed and justly recognized was his character for 
inteo-rity, executive abihty and perfect devotion to the 
interests of the State, that, in 1882, he was elected Gov- 
ernor of Texas by more than one hundred thousand majority 
of the popular vote. His advent to the executive office 
was at a period of comparative prosperity, when the spirit 
and pride of the people were ardently enlisted for the 
advancement of the various public institutions of the State, 
in which he also shared, and the succeeding Legislature 
made large appropriations for that purpose, which he car- 
ried out to the letter. This caused a deficiency in the 
treasury at the close of his first administration, which was 
seized upon by his opponents, who were actuated by pur- 
poses chiefly of a personal and selfish character, to defeat 
his re-election. The free grass system had resulted in the 
enclosure of large bodies of land by the leading stockmen 
of the State, often enveloping and shutting in the smaller 
herdsmen, and excluding them from access to the water, 
courses. This produced an organized system of fence 
cuttins:, which was extended to lawful owners as well as to 
intruders upon the public lands, and so outrageous and 
universal had grown this evil, that the Governor convened 
an extra session of the Legislature in January, 1884, to 



JOHN IRELAND. 3()9 

devise a remedy for this species of lawlessness. Stringent 
and efficient laws were enacted for its suppression, which 
the Governor executed with his characteristic promptness 
and vigor; and even this was sought to be used to his 
prejudice and to impair his popularity. But the innate 
justice of the people approved and appreciated alike his 
motives and his official acts, and at the Houston convention 
in August, 1884, he was unanimously re-nominated, and 
was re-elected by a majority vote of more than one hundred 
thousand. 

It has been truly said that there are times when even the 
virtues of men provoke hostility; as Tacitus expresses it, 
'nee minus periculum ex magna favia quam ex tnalo." 
But Governor Ireland has never once swerved from his 
principles or the line of his conscious rectitude to conciliate 
his enemies or to soften opposition. But with motives 
based upon principle, not policy, he has at all times boldly 
proclaimed his views, and fearlessly practiced the precepts 
of his conviction and the dictates of his judgment. He 
abides that public appreciation which never "fails to do 
justice to noble ends attained by pure motives and upri<;ht 
means. ^ 

He is a man of rare self-respecting dignity, and possesses 
the virtues of steady independence and sober reliance, 
which never spring from a commonplace mind. Starting 
in life amid circumstances by which thousands of our 
brightest geniuses have been overwhelmed, he peered through 
the clouds of obscurity, and having once caught a glimpse 
of possibility, he fixed an unswerving aim upon success, 
and in the prime of life his sterling traits of character bear 
him onward in the achievement of usefulness and merit. 
His career has been one of incessant labor ; at the bar in 
sedulously pursuing the interests of his clients, in the 
thorough preparation of his cases, in the study of both 
sides of every question — the possibilities of defeat as well 
as the possibilities of success ; on the bench, in the inde- 
fatigable search for the true principles of justice, and in 
the executive chair, in conscientious efforts to perform the 
duties of his office in the promotion of the public weal. 



310 BENCH AND BAU OF TEXAS. 

He has an abiding faith and lofty pride in the great destiny 
of his State, and his official course, while unwarped by the 
demands of faction, has sought to harmonize the varied 
and often conflicting interests of the great Commonwealth 
over which he presides. 

Governor Ireland is a thorough Democrat of the pure 
Jeflersonian school; firm, conservative and honest in his 
convictions, he throws the open banner of his principles to 
the public view, and while yielding full accord to the 
political changes really effected by the civil war, he is ten- 
derly mindful of the rights of his State, and has cherished 
a ready endeavor to promote its welfare in spite of faction 
and independent of Federal remissness. 

The defective reciprocity in the surrender of criminals in 
the new treaty between the United States and the Republic of 
Mexico has subjected the whole western border of Texas 
to the incursions of thieves and murderers from the Mexi- 
can States bordering upon the Rio Grande. This has 
occasioned great trouble to his administration, and upon the 
failure of strenuous efforts to obtain Federal protection, 
he has asserted his intention of preventing these evils by 
the militia of the State. But the change of principles and 
policy of the general government effected by the advent of 
a Democratic administration, bearing a juster regard for 
the rights and welfare of all sections of the country, will 
doubtlessly relieve him from this necessity. 

With these abnormal exceptions, so firm and vigorous has 
been his enforcement of the laws, that at no time has crime 
been less prevalent, life and property safer, or the general 
tenor of society more even and uniform in the pursuit of 
happiness in Texas than during his administration. 

Taught from his earliest youth in the school of self- 
reliance and independent action. Governor Ireland keeps 
his own counsel and panders to no element of society. He 
is a man of iron will, and in his official capacity acknowl- 
edges no suzrainty but the requirements of law, the 
demands of duty, the dictates of his own judgment and the 
welfare of the State. His manners are dignified and re- 
served, yet he is generous and kind in his disposition, and 



JOHN IRELAND. 311 

a true friend to those who gain his respect and confidence. 
There is nothing ostentatious or artificial in his character; 
but, solid and practical in his intellectual composition, his 
conduct is impressed with the qualities of his mind, and he 
preserves a steady equanimity in both. 

To say that he is devoid of strong prejudices would be 
ail attempt to destroy the equilibrium in which nature 
poises her endowments; but he lives upon an oflicial plane 
too high for their exercise, and the dormancy of these is 
but the counterpart of the active traits which shape and 
model his character into an orb of usefulness and eminence 
as a lawyer, statesman and citizen. 

His qualities eminently fit him for the times and events 
of his administration, during which, the troubles alluded 
to and the lawlessness of the border, have been entirely 
suppressed. He has administered the affairs of the State 
with a well-defined grasp and vigor. He is a man who 
cares little for exterior show or ceremonious effect, and at 
his second inauguration his address, which he read from a 
small sheet of paper, was in dignified and modest contrast 
with the vain display which modern usage has introduced 
into installment exercises. But Texas has no statesman 
of sounder judgment, or of more fidelity and fortitude in 
the promotion and protection of its interests and rights. 

Governor Ireland has been twice married. His first wife 
was Mrs. Matilda W. Fanelott, whom he wedded in 1854, 
and who lived but a short time. He was again married in 
1857 to Miss Anna W. Penn, of Mississippi, a lady whose 
noble qualities and accomplishments embellish his oflScial 
life and adorn her station. 



312 BENCH AND BAR OF TEXAS. 



ROBERT S. GOULD. 



Robert Simonton Gould was born in Iredell County, 
North Carolina, on the 16th of December, 1826. His 
father, Daniel Gould, was a native of New Hampshire, and 
a Presbyterian minister. His mother, whose maiden name 
was Zilpha M, Simonton, was a native of North Carolina, 
and of Scotch-Irish parentage. His father died when he 
was seven years of age, and his mother soon afterwards re- 
moved to Alabama, and settled at Tuscaloosa with the view 
of giving him and a younger brother the advantages 
afforded by the university of that State, and to the accom- 
plishment of this object she devoted all her energies. She 
kept a boarding-house for many years, and not only suc- 
ceeded in giving her two sons a collegiate education, but 
aided in educating the children of her daughters, present- 
ing a beautiful commentary upon the influence and power of 
a noble woman for the accomplishment of good and the 
objects of her heart's desire, and to her self-sacrificing 
labors and the Christian example the subject of this sketch 
is largely indebted for the success and attainments of his 
after life. 

Robert Gould was placed in the University of Alabama 
at the age of fourteen years, and graduated in 1844, when 
he had just reached his eighteenth year. In 1845 he began 
the study of law, but was soon afterwards elected tutor of 
mathematics in the university, and held that position three 
years and a half, continuinf^ at the same time the study of 
law as his duties afforded opportunity. In 1849 he ob- 
tained license to practice, and immediately opened an office 
at Macon, Mississippi, in copartnership with Ex-Governor 
J. L. Martin. In the fall of 1850 he removed to Texas 



ROBERT S. GOULD. 313 

and located at Centerville, in Leon County, where he soon 
attained a prominent position at the bar. 

In 1853 he was elected district attorney of the Thirteenth 
Judicial District, and having served two terms in this ofBce, 
declined re-election, and returned to his general practice. 
In 1855 he was married to Miss Lenna Barnes, a native of 
Marengo County, Alabama, and a lady of superb qualities 
and accomplishments. 

He was a member of the Secession Convention of 1861, 
and was soon afterwards elected judge of the Thirteenth 
District, but he resigned this office early in 1862, and entered 
the Confederate service as captain of a company. He was 
soon afterwards elected major of a battalion, known as 
Gould's Battalion, which formed a part of Kandall's brigade 
of Walker's division. He participated in the battles of 
Mansfield, Pleasant Hill and Jenkins' Ferry, in the last of 
which he was wounded, and had his horse killed under him. 
His battalion was afterwards joined to another and formed 
into a regiment, of which he was made colonel. 

When the war closed he returned to his practice of law, 
and in 1866 was again elected judge of his district, but was 
removed in 1867 by order of the military authority, and 
considering the act illegal, he did not at once resume his 
practice, but resided two years in retirement on a farm. 
In 1870 he removed to Galveston, and in May, 1874, was 
appointed by Governor Coke associate justice of the 
Supreme Court, to fill a vacancy occasioned by the resigna- 
tion of Judge Peter W. Gray, and was elected to the same 
position under the Constitution of 1876 establishing an 
elective judiciary. In 1881 he was appointed chief justice 
of the State, to fill a vacancy caused by the resignation of 
Judge George F. Moore, and was a candidate before the 
convention of 1882 for nomination to that position, but he 
was unsuccessful. 

As a lawyer the success of Judge Gould is due to his 
habits of profound and painstaking investigation, and to 
the careful and accurate preparation of his cases. His 
knowledge of law is scientific as well as practical, and he 
thoroughly comprehends its reason and philosophy, as well 



314 BENCH AND BAR OF TE;XAS. 

as its application. As a judge, his career was characterized 
by a steady, faithful and conscientious effort to discharge 
his duty, and dispense justice with a uniform and impartial 
hand. Among his most important and best delivered opin- 
ions is his dissenting opinion in Ex parte Towles, 48 Texas, 
413. In this case it was held by Chief Justice Eoberts that 
the Constitution gives to the District Courts no power, nor 
to the Legislature any authority to invest them with the 
power to try appeals of contested elections from the County 
Courts, as they have not, as under the old Constitution, " a 
general superintendence and control over inferior tribunals." 
And that they can have no constitutional jurisdiction unle^;s 
the contesting voter can show that he has a pecuniary 
interest involved amounting to the value of five hundred 
dollars, and a legal status capable of a judgment enforcible 
by execution. 

As to the unconstitutionality of the act granting such 
appeals. Judge Gould held that the determination of con- 
tested elections was not a matter of ordinary legal adminis- 
tration, and like other special and unforeseen cases, is 
embraced by the spirit of the Constitution in its grants of 
jurisprudence, although it is not named in express terms in 
the allotment of judicial powers ; and that as to the want 
of proper parties or legal subject-matter, the objection was 
not more forcible than in actions against the State, or 
proceedings in rem in admiralty or under the Texas stock 
law; and that if the Legislature may confer special juris- 
diction upon " such other courts as may be established by 
law," it surely can confer the jurisdiction of contested 
elections upon those already established. 

Before his term upon the bench had expired. Judge 
Gould was, without solicitation on his part, elected professor 
in the law department of the University of Texas, which 
position he now holds ; and, under the joint supervision of 
ex-Governor Roberts and him, the excellency of the law 
department of that institution invites attention from all 
parts of the country. 



JOHN W. STAYTON. 315 



JOHN W. STAYTON, 



John William Stayton, an associate justice of the Su- 
preme Court of Texas, was born in Washington County, 
Ky., on the 24th of December, 1830. His father, Robert 
G. Stayton, and his mother, whose maiden name was Har- 
riett Pirtle, were both natives of that State, of which their 
ancestors were settlers. 

In 1832 he removed with his parents to the southwest 
portion of the State, which was at that time an unsettled 
country. Having lost his father two years afterwards, his 
training devolved solely upon his mother, who was a woman 
of good culture and more than ordinary intellectual endow- 
ments, and who gave him the best educational advantages 
the new country afforded. After her death, which occurred 
when he was but fourteen years of age, he resided on a farm 
with a relative until he was seventeen years old, during 
which time he performed farm labor through the summer 
and attended the country schools in the autumn and winter. 

Being sufficiently advanced he desired at this age to enter 
college, but his guardian did not sanction his wishes, think- 
ing it best not to expend the limited means of his ward in 
this manner. In consequence of which he declined to re- 
main longer on the farm, and at his own volition served an 
apprenticeship at the blacligmith's trade until he was of age. 
During that time he continued a course of private study 
and general reading, which was perhaps of as much real ad- 
vantage to him as would have been the collegiate course which 
he desired to pursue. Having attained the age of twenty- 
one years, he began a moye extensive course of studies, 
which he continued until the twenty-fourth year of his ao"e, 
when, without an instructor, he began the study of law, 
which, prompted by the often expressed wish of his mother 



316 BENCH AND BAR OF TEXAS. 

and by his admiration for the distinguished men of the pro- 
fession, had been his intention from early life. Having 
read the usual course and that prescribed in the University 
of "Louisville, he afterwards entered the law department of 
that institution and graduated in March, 1856, with the de- 
gree of Bachelor of Laws. In April of the same year he 
was married to Miss Jennie Weldon, also of Kentucky, and 
to this noble lady he is greatly indebted for his remarkable 
success in life. 

In October, 1856, he emigrated to Texas and was admit- 
ted to the bar of this State at La Grange, where he resided 
until the fall of 1857, and then moved further west and 
settled in Atascosa County. His steady habits, his close 
application, faithful devotion to the interest of his clients, 
his uniform consistency of life and kind and amiable disposi- 
tion gained him both personal and professional popularity, 
and his advancement was rapid. In 1858 he was elected 
district-attorney of the Eighteenth Judicial District and 
was re-elected to. the same office in 1860, and served until 
the end of the term for which he was elected. 

He had never taken any active part in political affairs, 
though feeling a deep interest in the great events which in 
the last clays of 1860 cast their ominous shadows upon the 
national horizon. He was a staunch Southerner in his 
views and sentiments, and at the expiration of his second 
term as district-attorney, having removed his family to 
Sutherland's Springs, in Wilson County, he entered the 
Confederate service as a private, but was soon afterwards 
promoted to a captaincy, and remained in the army until 
the end of the war. 

When the great issue was decided against his section, he 
accepted its natural sequences with the fidelity of a good 
citizen and with the determination of an unswerving devo- 
tion to law, order and civic duty, and, having settled at 
Clinton, in De Witt County, he engaged in teaching school 
in order to support his family, until the courts should be 
reopened. In 1866 he resumed the practice of law in co- 
partnership with Samuel C. Lackey. In 1871 he removed 
to Victoria, and formed a copartnership with A. H. Phil- 



JOHN W. STAYTON. 317 

lips, and this place has continued since then to be his 
home.- 

His practice was now laige and remunerative, and in- 
cluded all classes of legal business. He had as much as he 
could do, and his energy and dispatch were taxed to the 
utmost to perform the duties entailed by his extensive 
patronage. He permitted no abstraction of his attention 
from his professional labors, and, with the exception of 
serving as a member of the Constitutional Convention of 
1875, persistently rejected every overture of political 
preferment. In November, 1881, he was appointed by 
Governor Roberts an associate justice of the Supreme 
Court of Texas, and, in 1882, was elected to the same 
position by the people. 

It has been said that the personal weight of no one can 
be depicted in the simple narrative of his achievements, 
and that the largest part of genius is latent. This silent 
and subtle quality whose impulses guide the actions of 
men, but whose counsels they can not divulge, constitutes 
essentially that which we call character. Achievement may 
obtain glory and a reputation among men, but character 
alone can confer the colors of noble purpose, and inspire 
the attainment of noble ends by noble means. To this 
principle Judge Stayton owes his success, and it may be 
truly said of him, as Sir James Mackintosh said of Mr. 
Grattan, "the purity of his life is the brightness of his 
glory." 

His career upon the bench has been full of eflSciency and 
faithful service, adorned with every feature which ability, 
uprightness and devotion can impress. His opinions bear 
the marks of indefatigable research, a conscientious and 
unswerving pursuit of law and justice, and are always well 
supported by reason, statute and precedent. Modest and 
retired in his deportment and manner of life, he detests 
notoriety, and shrinks even from the voice of approbation. 
But the records of the court, the confidence reposed in his 
integrity, and the esteem in which he is universally held by 
the Texas bar, proclaim at the same time his merits as a 
judge and his worth as a man. His opinions are numerous. 



318 BENCH AND BAR OF TEXAS. 

They are always clear, concise and direct, and leave no 
doubt as to the import of fact or the true bearing of prin- 
ciple. The following cases eminently exemplify the judicial 
traits which the author has endeavored to describe, and 
are leading adjudications in the State of some of the most 
intricate and important questions that can affect society : — 

Statutory assignments, under the new statute — Blum v. 
Wellermuck, 56 Texas, 81; Blum v. Welborne, 58 Texas, 
157 ; Denaho v. Tish Bros. & Co., lb. 165 ; Coffin v. Doug- 
lass, 61 Texas, 406; Keating v. Vaughn, lb. 518. 

Attachment, levy in, how made; constructive delivery, 
57 Texas, 91 ; affidavit for, 56 Texas, 423. 

Application of payments between the State and tax col- 
lectors, 57 Texas, 185 ; between parties, 60 Texas, 387. 

Community property, what constitutes it, 57 Texas, 37. 
Eights of the survivor as to the homestead, lb. 670. Pow- 
ers and duties of the survivor and the rights of a purchaser, 

60 Texas, 96, and 61 Texas, 69. 

Actions under the statutes for injuries resulting in death. 
By the mother, 57 Texas, 491 ; by the wife, 59 Texas, 435 ; 
by the father, want of consent, 60 Texas, 397 ; by the wife, 
where the train causing the death of the husband was in 
charge of employes of the railroad company, but operated 
for contractors, 61 Texas, 527. 

Condemnation of land for railway, who must institute 
proceedings under the statute ; rights of land owner, 59 
Texas, 326. 

Construction of constitutions and statutes, exemptions 
from taxation, lb. 654 ; statute of mills, manufacture, 60 
Texas, 230 ; validating informal acknowledgments, lb. 360 ; 
invalidating land locations, lb. 487; days of grace, 61 
Texas, 437. 

Duties of officers and their right to fees — District and 
county attorneys, 57 Texas, 307, and 56 Texas, 385; fraud- 
ulent trusts, lb. 110. 

Homestead, when lost as a place of business, 57 Texas, 
674 ; when lost as a home, 56 Texas, 315 ; limitation of, 

61 Texas, 220 ; on property held by tenants in common, 58 
Texas, 211 ; abandonment, part, 59 Texas, 32 ; right of wife 



JOHN W. STAYTON. 319 

to recover, 60 Texas, 209 and 235; contract to refuse the 
use of, 61 Texas, 233. 

Injunction, judgment may be rendered on dissolution of, 
practice, 57 Texas, 129. 

Joinder of parties and causes of action, opinion on re- 
hearing, 58 Texas, 191. 

Land law ; rights of purchaser when patent has not been 
issued, 59 Texas, 427 ; purchaser of school lands, 60 Texas, 
61; illegal location, 61 Texas, 629; mistake and accident, 
lb. 665. 

Municipal taxation; local assessment, when valid, 56 
Texas, 522 ; payment of, under protest, lb. 486. 

City taxing its interest in property of which it is a part 
owner, but which is controlled by another corporation, 5 
Texas Law Revieiv, 117. 

Liability of master to servant, his duty to warn an in- 
experienced employe of unseen danger, 56 Texas, 301 ; 
who represents the master, defect in machinery, negligence 
in the employment or retention of servants, 58 Texas, 277 ; 
when the danger is known to the servant, 59 Texas, 10. 

Municipal indebtedness, authority to contract, payment, 

58 Texas, 463. 

Insurance, usage, agents, 56 Texas, 234, and 59 Texas, 
507 ; to whom the benefit of insurance accrues, lb. 674. 
Illegal contracts, 60 Texas, 379. 
Negligence, of parents, can not be imputed to an infant, 

59 Texas, 64. 

Notice ; whether a promise can be notice, 60 Texas, 315. 

Nuisance, owner of propei'ty liable for, 61 Texas, 133 ; 
when an agent is liable for, lb. Ill . 

Negotiable interest, when it may be held as collateral se- 
curity, lb. 365. 

Measure of damages, proximate cause, lb. 345. 

Jurisdiction, county boundaries, 58 Texas, 228 ; of 
County Court over guardians, bond after discharge, lb. 
554 ; of District Court over injunctions in cases involv- 
ing less than five hundred dollars, lb. 616 ; of contested 
elections, 60 Texas, 46 ; of probate of wills, lb. 46. 



320 BENCH AND BAR OF TEXAS. 

Lis pendens, writ of error, 60 Texas, 556. 

Stoppage in transitu, lb. 278. 

Testament, adoption, under the Spanish law, ancient in- 
struments, 61 Texas, 61. 

Liability of municipal corporations for damages for 
injuries resulting from neglect. Posneimski v. City of Gal- 
veston, 62 Texas. 

Liability of railway company for injuries arising from 
neglect of receiver while the road in his hands. Ryan v. 
I. & G. N. R. R. Co., lb., and Hicks v. I. & G. N. R. R. 
Co., lb. 

Separate property of married woman, resulting trust, 
registration, liens upon, 60 Texas, 112. 

Wills, powers, construction of, 62 Texas, 1. 

In the beginning of the canvass of 1884 the people of 
the Seventh District desired that he should represent them 
in the Congress of the United States, and, while he had a 
distaste for political office and was devoted to his judicial 
duties, so ardent was the manifestation of this wish of the 
people that it was thought he would accept the nomination. 
This elicited the following communication from the bar, 
and his reply, as substantially published in the Austin 
Statesman : — 

Austin, Texas, June 4, 1884. 

Hon. John W. Stayton, Austin, Texas — 

Sir: The undersigned, members of the bar, now in Aus- 
tin during the session of the Supreme Court, believe we 
utter the general desire of the bar of the State in respect- 
fully requesting you not to resign your position as supreme 
judge of Texas in order to represent the district in which 
you reside in Congress. This request is made in view of 
what seems the general desire in your district that you shall 
become a candidate. We appreciate the anxiety of your 
local constituents that you shall go to Congress, but we re- 
spectfully suggest that you represent, as supreme judge, 
the entire State in a higher sphere of usefulness, and we 
hope you will agree with us in the belief that your highest 



JOHN W. STAYTON. 



321 



duty is to the people and the bar of the entire State, who 
have already elected you. 

M. E. Stringfellow, 
T. T. Gammage, 
Alvin C. Owsley, 
Charles R. Gibson, 
J. H. Robertson, 
J. M. Hartfield, 

C. Edmundson, 
z. t. fulmore, 
Bethel Coopwood, 
H. E. Shelley, 
W. J. Montgomery, 
W. M. Brown, 
James A. Mum, 
J. W. Laavrence, 
Gardner Ruggles, 
R. H. Ward, 

D. G. Chalmers, 
S. A. Posey, 
j. m. morphis, 
Fred. Carleton, 
A. M. Jackson, 
W. M. Walton, 
N. S. Walton, 
T. S. Maxey, 
H. D. Pkendergast, 
Osceola Archer, 

C. D. Johns, 

D. W. Doom, 
N. P. Jackson, 

E. B. Hancock, 
D. G. Smith, 

J. W. 



George W. Russ, 
L. H. Verny, 
George L. Hill, 
B. R. Webb, 
B. H. Rice, 
L. J. Storey, 
Dudley G. Wooten, 
James R. Davis, 
Daniel Gettins, 
John B. Rector, 
T. A. Thomson, 
W. A. Blackburn, 
J. W. Cartwright, 

E. T. Moore, 
A. H. Graham, 
T. E. Hammond, 
I. G. Searcy, 
James B. Goff, 
W. D. Williams, 
A. J. Peeler, 

A. M. Jackson, Jb,, 
R. J. Hill, 
G. S. Walton, 
S. R. Fisher, 
A. W. Terrell, 

F. G. Morris, 
John W. Robertson, 
A. S. Walker, 

N. G. Shelley, 
David Sheeks, 
James H. Burts, 
Baines. 



To this Judge Stayton replied that the subject had given 
him much concern, as, contrary to his oft-repeated desire, 
he could not close his eyes to the fact that it was the wish 
of many friends that he should become a candidate for 

21 



322 BENCH AND BAR OF TEXAS. 

Congress in the Seventh District. He realized the right of 
the people to have the services of any citizen, and it had 
been a difficult thing to determine his duty in the premises. 
The people of the Seventh District had bestowed many 
kindnesses upon him, and, were he not already in the ser- 
vice of the State, he should deem it his duty to sink his 
own personal desires and preferences, and accept a nomi- 
nation for Congress if tendered by the people. Having 
accepted another position at the hands of the people, he felt 
that he was under an implied obligation to hold that office 
and discharge its duties to the best of his ability. He had 
not encouraged the association of his name with the nomi- 
nation, but had said frankly that if he could see clearly 
that his services were essential to the welfare of the dis- 
trict he might possibly consent to become a candidate, at 
the same time requesting that his name be not urged before 
the people. He had never believed the services of any one 
man to be essential to the welfare of the Seventh District. 
There were those who could do more effectual service in 
Congress than he. He regretted that his name had been 
mentioned for the place, but returned thanks to those un- 
selfish friends who had so complimented him. He felt it 
his duty to the people and himself to state that he could 
not accept a nomination for Congress, in order that his 
candidacy might not be expected, and that others who might 
be willing to accept the place might be entirely unembar- 
rassed. He closed by thanking the members of the bar for 
their kind expressions of confidence and esteem. 



CHARLES S. WEST. 325 



CHARLES s. West. 



It will be observed in this work that the State of South 
Carolina has furnished many ornaments to the Bench and Bar 
of Texas. The patriotism, love of liberty, and heroic spirit 
of the young Republic and State were congenial to the 
sentiments which the nurseries of that State inspired in the 
minds of genius and ambition, and many of its sons cast 
their lot early in life with the destinies of the Lone Star ; 
among these were Rusk, Hemphill, Lipscomb, the two 
Jacks, Roberts, Brewster, and the subject of this sketch ; 
men who largely shaped the proud career of Texas and 
adorned and elevated its jurisprudence. 

Charles- Sherman West, one of the associate justices of 
the Supreme Court of Texas, was born in Camden, South 
Carolina, on the 24th day of September, 1829. Here his 
father, John C. West, a native of North Carolina, long 
lived a respected and honored citizen, and died in 1855. 
He served two terms as sheriff of Kershaw District, and 
was for many years teller in the old bank of Camden. His 
mother, Nancy Clark Eccles, who was connected with the 
Thorntons, Eccles, Clarks, and other old Carolina families, 
was educated in the then famous Moravian School at 
Salem, North Carolina, and was a lady of literary taste 
and superior culture. She was often a contributor to the 
Augusta Mirror^ and prided herself in efforts to establish 
a State literature that would foster and encourage Southern 
genius. 

Her son, the subject of this sketch, enjoyed the best 
early advantages and was thoroughly prepared for college 
under the instruction of noted teachers in his native town. 
In 1845 he was sent to Jefferson College, at that time a 
noted Presbyterian institution, at Cannonsburg, Pennsyl- 



324 BENCH AND BAR OF TEXAS. 

vania, and under the supervision of the celebrated divine, 
Dr. Eobert J. Breckinridge, of Kentucky. In 1846 he 
returned to his native State and became a student in the 
College of South Carolina, which was then presided over 
by the famous scholar and orator, William C. Preston, and 
in which Francis Leiber, the well known writer on political 
economy, was a professor, and he graduated at this insti- 
tution in 1848. 

On leavinor colleo-e Mr. West returned to his native town 
and finding himself in needy circumstances engaged, during 
the years 1849-50, as a teacher of a small school in the 
Boykin family at Pleasant Hill, a few miles from Camden, 
and during that time devoted his spare hours to the study 
of law under the guidance of James Chesnut, who was 
afterwards United States Senator, and during the civil war 
a member of President Davis' staff. This accomplished 
gentleman took great interest in the young student, encour- 
aged and aided him in many ways, and to his precepts and 
the sentiments which he inculcated, Judge West owes more 
than to any other person the reputation and eminence 
which he has attained at the Texas bar as one of the ablest 
practitioners and thorough lawyers in the State. 

In the spring of 1851 he was admitted to the practice of 
his profession at Columbia, and located at Camden, but 
the litigation in those times being generally on a large scale 
and legal patronage being confined for the most part to 
experienced practitioners who had served their vigenti an- 
norum lucuhrationes and established their reputation, he 
met with but little immediate encouragement, and chafing 
under the restraints of an arbitrary custom he determined 
to leave his native State and seek other fields. 

In the fall of 1852 he immigrated to Texas and settled at 
Austin, where, on his arrival, he had l)ut seven dollars and 
fifty cents in his pocket, which he had borrowed, and was 
really without a dollar of his own in the world. During 
the first two years of his residence in Austin his success 
was limited, but in 1854, Colonel H. P. Brewster, a South 
Carolinian, who had come to Texas under similar circum- 
stances, sympathizing with the efforts of his young fellow- 



CHARLES S. WEST. 325 

statesman, took him into copartnership, and from that 
date, starting with a moderate practice, the star of his 
professional eminence took its way toward the zenith. 

In 1855 he was elected a member of the Sixth Legisla- 
ture of Texas, as the representative of the Capital District, 
and participated prominently in the discussion of the impor- 
tant questions of the day. His speeches in defense of 
General Rusk, on the public debt bill, on the questions 
which at that time agitated the South, and other subjects, 
attracted public attention and gained him popuhirity. 

In 1856 he formed a copartnership with Hon. John Han- 
cock, and the firm became one of great celebrity. For 
many years they did the leading practice in their section of 
the State, including many counties of Central Texas. They 
were particularly noted for their extensive land practice, 
their large business in the Federal courts, and for their suc- 
cess as the attorneys and representatives at Austin of the 
Houston and Texas Central Railroad. 

In 1861 Mr. West was elected Secretary of State under 
Governor Lubbuck, but in 1862 he entered the Confederate 
service and was appointed Assistant Adjutant-General, with 
the rank of Captain, on the staff of General Hebert, and 
subsequently served in the same capacity on the staff of 
General Magruder. At the battle of Galveston he was on 
the staff of General Scurry, and both that officer and Gen- 
eral Magrudergave him complimentary mention for valuable 
services and good conduct in their reports. During the 
last year of the war he served on the staff of General E. 
Kirby Smith, in the Adjutant-General's department, and was 
with the command of General Scurry when that officer was 
killed in the battle of Jenkins' Ferry, on the Sabine River, 
in Arkansas. He was promoted for gallantry in this action 
to the rank of Major, and was assigned to duty as Judge- 
Advocate in the Trans-Mississippi department, and held this 
position until the close of the war. 

At the termination of hostilities Judge West returned to 
Austin and resumed his copartnership with Judge Hancock, 
and the business of the firm soon became equal to that of 
any in the State in all the branches of the profession. In 



326 BENCH AND BAR OF TEXAS. 

1874, he was admitted to practice in the Supreme Court of 
the United States, and argued before that court, among 
others, the very important case of Connett v. Williams, 
which increased his reputation as an advocate and learned 
lawj'^er. In 1876, under an act passed in pursuance of the 
requirements of the new Constitution, he was appointed by 
Governor Coke one of the first commissioners to revise the 
Code of the State. He was made chairman of the com- 
mittee, and devoted, in conjunction with his colleagues, all 
his energies and learning to the compilation of the present 
Revised Statutes of Texas, which attest in the highest de- 
gree the eminence of its authority. 

He also represented Travis, and a number of adjoining 
counties, in the convention which framed the Constitution 
of 1875, and was chairman of the important committee on 
general provisions. He was not satisfied with the draft of 
the constitution when it was presented to the convention, 
and opposed its adoption as being, in his judgment, defec- 
tive, but voted for it at the polls as being far superior to 
the existing organic law. 

In December, 1881, he was elected an Associate Justice 
of the Supreme Court, and holds that position at the present 
time. His learning and integrity, his powers of research, 
his calm patience and courteous dignity, eminently fitted 
him for this elevated position, and he forms one of a trio 
of judges whose qualities and ability revives the " old 
court" of other days. 

As a lawyer. Judge West was particularly noted for being 
a most consummate pleader, and an excellent practitioner, 
and was considered one of the ablest chancery and Federal 
court lawyers at the Texas bar. He prepared his cases with 
great care and research, and maintained his side in argu- 
mentation with the skill of a thorough dialectician. The 
merits of his cases lacked nothing which labor and learning 
could impart to them, and conscientious fidelity to the in- 
terest of his clients endowed his eff'orts with confidence and 
satisfaction, and success crowned his professional virtues. 

As a judge his opinions are noted for their clearness 
and precision, and have the special merit of adducing all 



CHARLES S. WEST. 327 

the former decisions of the court upon the question at issue, 
and sifting from them every analogy and application to the 
merits of the case at bar, and laying down clearly the views 
of the present court, so that no conflict can arise between 
the assertion of a general principle and a particular state 
of facts. 

In private and social life, Judge West is somewhat re- 
served in his manners, but he is a generous, courteous and 
kind-hearted man, and his personal qualities are staunchly 
subsidiary to his professional attainments. He was married 
in 1859 to Miss Florence Randolph Duval, eldest daughter 
of Hon. Thomas H. Duval, who so long and satisfactorily 
occupied the position of United States District Judge for 
the "Western District of Texas. Her grandfather was Hon. 
William P. Duval, the first Governor of Florida, and the 
Ralph Ringwood of Washington Irving's " Tales of Brace- 
bridge Hall," whose intimate friendship he enjoyed. Mrs. 
West was a highly accomplished lady, a charming vocalist, 
and would have been an ornament to any society. She pos- 
sessed a rare poetic taste and genius. A small volume of 
her poems have been published for private circulation only, 
and they are of superior literary excellence. Judge West 
is not a member of any religious denomination, but has a 
predilection for the Protestant Episcopal Church, and for 
thirty years has been a regular attendant upon the services 
of that communion. 



328 BENCH AND BAR OF TEXAS. 



RICHARD S. Walker. 



Richard Sheckle Walker is a native of Kentucky, and was 
born in Barren County in the year 1824. His early educa- 
tional advantages were ample and propitious. He gradu- 
ated in 1842 at Centenary College, Jackson, Louisiana, and in 
1844, when but twenty years of age, received his diploma 
from the law department of Transylvania University, at 
Lexington, Kentucky, and his license to practice at the bar 
of that State. Returning to Jackson, Louisiana, which was 
then his home, he devoted one year to the study of civil law 
preparatory to practice in the Louisiana courts. But Texas 
having recently to that time been admitted into the Union 
his aspirations seized upon its prospects, and he determined 
to cast his fortunes with the bar of the new State, and 
located at San Augustine in February, 1846, where he began 
his long and distinguished professional career. But having 
married Miss Eliza J. Clark, a daughter of Judge Amos 
Clark, of Nacogdoches, in the summer of 1848, he imme- 
diately removed to that place, and formed a copartnership 
with his father-in-law. 

With endowments of a high order, combined with the ad- 
vantages of his eminent association, his rise at the bar was 
rapid and confirmed, and in 1847 he was appointed district 
attorney, and was elected to the same office at each succes- 
sive term during a period of nearly eight years. In 1857 he 
formed a copartnership with Judge George F. Moore, after- 
wards chief justice of the State, and continued this connec- 
tion until he was elected to the district bench in 1860. 
During this association he was appointed, in conjunction 
with his partner, reporter of the decisions of the Supreme 
Court, and they prepared the twenty-second, twenty-third 
and twenty-fourth volumes of Texas Reports, which were 



RICHARD S. WALKER. 329 

made statutory models for subsequent issues. In 1866 he 
reported alone the twenty-fifth volume, and was a member 
of the constitutional convention of that year, in which he 
took an active part in framing a constitution which would 
at the same time comply with the exigencies of the situation 
and assert the rights and dignity of the State. 

In 1873 he was appointed by Gov. Coke to the judge- 
ship of his former judicial district, to which, at the expi- 
ration of the term of his appointment, he was elected by the 
people. In 1879 he was appointed a member of the Court 
of Commission of Appeals, to which he has since been twice 
reappointed, and of which he is now the presiding judge. 

As a lawyer the career of Judge Walker has been eminent 
and brilliant. The practice of the firms of Clark & Walker 
and of Moore & Walker, both in the Federal and State 
courts, was large and extensive, and they were employed in 
many important cases in both the civil and criminal branches 
of jurisprudence. He held the position of district judge 
until 1865, when he was removed by military authority as 
one of the impediments to reconstruction. He then con- 
tinued his practice alone, with increasing reputation, until 
his professional ability and pure character caused him 
likewise to be called into service in a high judicial ca- 
pacity, and the features which he has been instrumental 
in imparting to the jurisprudence of the State, both as a 
lawyer and judge, are important and varied. He has 
devoted all his mental and phj^sical energies to his profes- 
sion, and consequently his knowledge of law is profound 
and comprehensive. Endowed with a high order of talents 
his intellectual powers have been trained and whetted in a 
severe school of discipline and application. His capacity 
for intellectual labor is limited only by his powers of phy- 
sical endurance, and he possesses the highest of all intel- 
lectual traits, and that to which Sir Isaac Newton attributed 
the excellence of his mental qualities — the power of con- 
centrating his thoughts — the faculty of close attention and 
patient thinking. His mind is vigorous and active ; its 
resources are rich and varied, and constantly at his com- 
mand. 



330 BENCH AND BAR OF TEXAS. 

His perceptions are singularly prompt and acute, and his 
ripened judgment readily separates the practical from that 
which is speculative, while sound reason and accurate asso- 
ciation verify his knowledge. This analytical capacity of 
devining the elements of a question, of measuring their 
separate and combined force, and determining at once the 
true character of a proposition — to untwine the unsized 
hank of concretion, eliminate the false strands and wind 
back the threads of abstraction into the pure synthesis of 
truth is the most subtle quality of the human mind, and the 
highest characteristic of professional eminence. This calm, 
clear-sighted understanding, linked with unswerving fidelity, 
is the secret of the success which has built for Judge 
Walker his well deserved reputation as an able lawyer, and 
combined with his varied and extensive learning, his stern 
integrity and purity of character, the judicial model is 
complete, and as an excellent judge, he enjoys the confidence 
and esteem of both the bar and the people. 

These traits which denote a superior mind and a superior 
judge are heightened by his personal accomplishments. The 
light which illuminates his mind is kindled in his heart, and 
there it shines with its brightest luster. He is a man of an 
exceedingly amiable character, and free from any over- 
wrought superficial sternness of judicial ethics, his manners 
are softented by a complaisancy and polish which indicate 
a heart full of kindness and generous impulses. He pos- 
sesses in an eminent degree the quality which Lord Claren- 
den says particularly marked the character of John 
Hampden, " a flowing courtesy towards all men." 

- The literary attainments of Judge Walker are likewise 
of a high order. The versatility of his genius enabled him 
without detriment to the duties of his jealous profession to 
cultivate a polished style of literary composition, rarely 
found in one whose thoughts and ideas are constantly clothed 
in the starched and staid habit of legal diction. He has a 
fine classical taste and copious command of language, and 
his style is chaste, unique and spirited, subdued only by 
the weight of thought and argument — a quality character- 
ized by " tot verba, tot pondera." His address to the 



RICHARD S. WALKER. 331 

Texas Bar Association in 1883, published by the associa- 
tion, is a model of didactic composition, sparkling with 
refined phraseology and verbal elegance. The following 
are among the most important cases argued by Judge 
Walker before he was appointed to the bench. His re- 
ported decisions speak for themselves : — 

Grain v. Grain, 17 Texas, 82, and 21 Texas, 790 — pre- 
sented questions of the first impression in Texas, under the 
will law of 1840. That law inhibited the disinherison of 
the testator's children beyond one-fonrth of his property. 
In this case the testator hud made conveyances during his 
life to a favored child of nearly all of his property, the 
aggregate value of which was about $24,000. After his 
death, his other children brought this suit to recover their 
inheritable share of three-fourths of the property, alleging 
that the deeds of conveyances were simulated devices to 
avoid the will law. This suit was brought and prosecuted 
in the District Gourtby Glark & Walker, where a demurrer 
was sustained to the petition and the cause dismissed. The 
plaintiff" appealed and it was argued in the Supreme Gourt 
by Judge Walker, and the judgment was reversed and the 
doctrines laid down in the two cases cited above were estab- 
lished for the first time in the jurisprudence of the State. 

Aylott V. Lewis, 45 Texas, 190. This was another wiU 
case brought by R. S. Walker and his son, J. G. Walker. 
The question, whether real estate can pass under a nuncu- 
pative will in view of the language of the statute of 1840. 
It was held that it did not. The brief is reported, and in 
the discussion of that point the court adverts to it in terms 
of marked commendation. The view contended for was 
sustained in Ohio under a Statute exactly similar, as is 
shown in the brief. Three years after the decision of this 
case the features of the will law seem to have been so far 
varied from those of the former law, as to suggest, at all 
events, the idea that the construction unsuccessfully con- 
tended for in Alyott v. Lewis was intended to be adopted 
by the Revised Statutes. But no case has arisen under the 
revision presenting the question for decision. This case 



332 BENCH AND BAR OF TEXAS. 

stands alone in the reports, as the only one on the question 
involved. 

Hewitt V. The State, 25 Texas, 722, is a case often quoted 
in text books, as well as in Texas jurisprudence. The 
question involved was made by Judge Walker on the trial 
of the case in the court below questioning the constitu- 
tional power of the Legislature to provide in a penal law 
that the indictment may dispense with the allegation of any 
fact essential to show on its face the violation of the law, 
or the ingredients of the crime, and to throw the burden 
of the proof on the accused to disprove a fact not alleged 
in the indictment for the offense. The doctrine contended 
for was sustained by the Supreme Court on constitutional 
grounds. 

Moore v. Letchford, 35 Texas, 186. This case involved 
the construction and the effect of the repeal and the amend- 
ment of the several statutes regulating the lien of judgments 
on lands; and also the effect or influence of the civil war 
upon liens created by judgments. This suit was brought 
against the current impression of the profession as to the 
law involved in the case, and in the court below a demur- 
rer to the petition was sustained. On appeal the views 
presented by Judge Walker in his brief were fully sustained, 
and the law as then settled has continued ever since, and 
the brief of appellant's counsel was referred to in a subse- 
quent case as laying down the correct rule. 

Cravens v. Brooke, 17 Texas, R. 268. This was a case 
involving the construction of the law granting pre-emption 
rights to settlers on vacant public domain on several impor- 
tant points which had not before been determined. The 
case was argued by Judge O. M. Roberts on one side, and 
Judge Walker on the other ; the arguments of both appear 
in the report of the case. Chief Justice Hemphill in the 
opinion said the cause had been argued with signal ability 
by the counsel on both sides. This case may be regarded 
as one of the leading cases on the questions involved. 



JOHN P. WHITE. 333 



JOHN P. WHITE. 



John Preston White, presiding judge of the Texas Court 
of Appeals, was born at Fruit Hill, near Abingdon, Vir- 
ginia, on the 7th of March, 1832, of which place his father, , 
James L. White, was a native and merchant. He had from 
his earliest youth the advantages which the excellent 
schools and academies of his town afforded. In 1847 he 
entered Emory and Henry College, from which he was 
graduated in the regular collegiate course in 1850, and re- 
ceived the Robertson prize medal for proficiency and accom- 
plishments in oratory. In the fall of 1850 he entered the 
University of Virginia, taking the tickets of moral philoso- 
phy and law, and received certificates of proficiency in both 
of these departments at the following intermediate examin- 
ation. In 1851 he was chosen anniversary orator for the 
Jefferson Society, and soon afterwards retired from the 
university, without standing a final examination, in conse- 
quence of a severe attack of pneumonia, which came near 
ending his life. 

On the recovery of his health he studied law two years in 
the office and under the instruction of Samuel Logan, a dis- 
tinguished lawyer, and at that time Commonwealth's attor- 
ney for Washington County, Virginia. In August, 1853, he 
was admitted to the bar, upon an examination before George 
W. Hopkins, Andrew Fulton and R. M. Hudson, three dis- 
tinguished circuit judges of Virginia, and began the practice 
of his profession at Abingdon. He was married during the 
same year to Miss Annie Stuart Lewis, an accomplished 
and noble young lady of Charlottesville. His early pro- 
fessional prospects were flattering, but the lucubrations of 
a young lawyer at the bar of Virginia at that period were 
defined by an arbitrary custom, and often painfully pro- 



334 BENCH AND BAR OF TEXAS. 

longed before he was considered competent to manage an 
important case, or exert an influence favorable to a success- 
ful issue ; and, chafing under restraints which prevented the 
immediate and full development of his talents, Mr. White 
sought a more spacious and less ceremonious field, and on 
visiting Texas in the early part of 1853, he was so favorably 
impressed with the advantages which it offered to his aspira- 
tions, that he determined to make his home in the new State, 
and in 1855 removed to Seguin, in Gaudalupe County, 
where he settled in the practice of law, in copartnership 
with Thomas M. Logan, a son of his old preceptor, who 
came with him to Texas and died a year or two afterwards. 

At Seguin Mr. White soon established a reputation both 
as a lawyer and a man of culture and talent, and he was 
employed in most of the important cases, both civil and 
criminal, that came before the courts of Gaudalupe and 
Comal Counties, among which was the great case of Demchy 
V. Devilbiss, reported in 37 Texas, 93, which involved the 
title to the entire city of New Braunfels, and which he 
gained in behalf of the city. He devoted all his energies 
and talents to his profession, and, as a practitioner, was 
eminently successful in both the civil and criminal branches 
of the law. While possessed of marked executive abilitj'- 
and popular traits of character, he had no aspiration for 
political or even professional office, and, with the exception 
of being a notary public and Mayor of Seguin, he decfined 
all inducements of official preferment until he was appointed 
by Governor Coke, in 1874, to the bench of the Twenty- 
second Judicial District. This position he held until 1876, 
when he was elected one of the three judges of the Court of 
Appeals, and, upon the death of Judge Ector, in 1879, was 
elected Presiding Judge of that bench, which position he 
still occupies. 

As a judge, he is full of steady energy and research. His 
decisions are rendered in a cogent and spirited style, indic- 
ative of clear comprehension, thorough conviction, and 
conscientious judgment. His knowledge of law and prece- 
dent is comprehensive. The natural powers of his mind 
are vigorous and have been cultivated by an excellent edu- 



JOHN P. WHITE. 335 

cation and sedulous professional training. These qualities, 
associated with a strong force of character and a high sense 
of duty eminently qualify him for the position he holds- 
Kind-hearted and sympathetic in his disposition, he is 
peculiarly sensitive to the appeals of lenifying circum- 
stances, and in criminal cases tempers his judgments with 
every meritorious palliation consistent with a strict compli- 
ance with the demands of law and justice. 

Judge White has decided many important questions of 
first impression in Texas jurisprudence. His decision in 
the case of Johnson v. The State, 1 Texas Court of Ap- 
peals, 333, in which he admitted the common-law principle 
that the testimony of a deceased witness properly taken on 
the examining trial before a justice is valid evidence, has 
been incorporated in the code of criminal procedure. His 
opinion in Cox etal. v. The State, 8 Texas Court of Appeals, 
254, sustaining the power of a district judge to change the 
venue in criminal cases of his own motion, and establishius: 
the inability of a verdict to cure a defective indictment, is 
able and exhaustive, and impressed. these principles into 
permanent features of Texas jurisprudence. His interpre- 
tation of the phrase " disturbing public worship," in Wood 
V. The State, 11 Texas Court of Appeals, 318, as being 
inapplicable to mere ecclesiastical meetings, caused the Leg- 
islature to enact its appliance to assemblages of either char- 
acter. 

His decision in Wooldridge v. The State, 13 Texas Court 
of Appeals, 445, is a striking illustration of his strict con- 
struction of law, and the vigilant watch which, as a judge 
of a court of last resort, he maintains at the door of jus- 
tice. The jury in that case returned the verdict that " we, 
the jury, find the defendant, Ben Wooldridge, guilty of mur- 
der in the^s^ degree, and assess the punishment at death.'' 
The insufficiency of this verdict was presented as ground of 
a motion for a new trial, which was overruled, and on the 
trial of the appeal. Judge White sustained the invalidating 
defect and remanded the case. For this he was severely 
assailed by law critics throughout the country ; but no an- 
swer has ever been made to the argument which led to his 



336 BENCH AND BAR OF TEXAS. 

conclusion. Here was a verdict containing the word ^6'^ — 
a word properly spelt, well defined and well known, which 
could not be made either by sound or signification to supply 
the place of the requisite word ^^ first,'' or convey any 
idea that enters into the composition of a legal verdict. 
Therefore, not even the principle of idem sonans could 
apply. Could the judge strike out a properly spelt and 
well known word in a verdict and by inference and intend- 
ment substitute another of entirely different import? If 
so, where would this power end? If he could replace one 
word, he could replace another, and change the entire char- 
acter of a verdict at discretion. Nor could the pronuncia- 
tion of the proper word by the clerk in reading the verdict 
remedy the defect, for that would be to cure one error by 
virtue of another. 

His distinction in Simco v. The State, 9 Texas Court of 
Appeals, in regard to the rules which govern the pleas of 
autrefois acquit and autrefois convict are highly important, 
and in this case he introduced the principle that a convic- 
tion for a higher crime than that charged in the indictment, 
and therefore unlawful, does not exempt from a second 
prosecution for the offense for which the party was in- 
dicted. 

No provision has ever been made by law for the publica- 
tion of the decisions of the Court of Appeals in civil cases, 
although questions of new impression and of the greatest 
importance are constantly brought before that tribunal and 
stamped by its decisions upon the jurisprudence of the 
State. To remedy this unaccountable legislative indiscre- 
tion, Judge White, in conjunction with Judge S. A. Will- 
son, prepared and published at their own expense, in 1883, 
a report of the leading civil cases decided by that court. 
This is a work of great merit. It combines the features of 
a report and digest, and presents in convenient sections a 
full and clear exposition of the law in connection with a 
summary of the facts which gave rise to the principle 
enunciated. These sections are indexed, so that the practi- 
tioner can readily examine any question without reference 
to other features of the case. This novel and happy de- 



JOHN P. WHITE. 337 

aign affords a utility which greatly enhances the value of 
the work, which altogether make it an indispensable addi- 
tion to every law library in the State, and useful as an an- 
alysis of principle to any practitioner. 

While precluded by the proprieties of his office from any 
active participation in politics, he is a thorough Democrat in 
his views, and during the civil war was a strong Southerner 
in his sentiments. He entered the Confederate service at 
the beginning of the war as captain of a company in the 
Sixth Kegiment of Texas infantry, and never permitted 
either hardship or defeat to chill his ardor or cloud his 
hopes until the final consummation of the issue. In the 
battle of Arkansas Post he was taken prisoner and confined 
at Camp Chase until the battle of Chancellorville, when he 
was exchanged and ordered on duty in the Trans-MississippL 
department, and at the close of the war resumed the prac- 
tice of law at Seguin. 

While he is a man of marked firmness and candor, he 
is amiable and obliging in his disposition, polite and cour- 
teous in his professional ethics and social manners, and is 
an honor to the bench over which he presides. 
22 



338 BENCH AND BAR OF TEXAS. 



Samuel a. willson. 



Samuel Andrew Willson, one of the judges of the Texas 
Court of Appeals, was born in San Augustine County, 
Texas, on the 9th of January, 1835, where his father, Ste- 
phen Pelham Willson, who was a native of Delaware county, 
New York, and a physician by profession, settled in 1831. 
His mother, whose maiden name was Mary Richardson 
Davis, was a native of Georgia, and a rehitive of Hon. Jef- 
ferson Davis. His education was confined to the advantages 
afforded by the country schools of Texas until he arrived at 
the age of fifteen years, when he abandoned his academic 
pursuits and began the study of law in the office of Hon. 
M. Priest, of Woodville, Texas. In 1852, when but seven- 
teen years of age, he was admitted to the bar by authority 
of a special act of the Legislature relieving him of the 
disabilities of minority, and immediately entered upon the 
practice of his profession at Woodville. He was endowed 
with a capacity for intense labor, inspired by an ambitious 
thirst for knowledge, and, subsidiary to a vigorous and 
intelligent application to the study of law, he managed by 
a course of useful reading and close observation to supply 
the deficiency of his early education. 

These qualities and habits promoted an advancement 
which soon commanded public recognition of his ability and 
sterling traits of character, and, in 1856, he was, at the age 
of twenty-one years, elected districtattorney of the Fifteenth 
Judicial District, and was re-elected to the same office in 
1858. The remarkable professional success of Judge Will- 
son has been constant and uninterrupted, except during the 
period of his military service. He has always been a 
thorough Democrat in his political creed, and fidelity to his 
State and section of the countrv was an innate and cherished 



SAMUEL A. WILLSON. 339 

quality of his being. He enlisted in the Confederate service 
as early as May, 1861, as first lieutenant of a company in 
the First Regiment of Texas infantry. In 1862 he was made 
captain, and served in the army of Northern Virginia until 
the battle of Gettysburg, in which he was taken prisoner. 
He participated in the battle of Seven Pines, the seven days' 
fight, in the second battle of Manassas, and the battle of 
Sharpsburg, in the last of which he was severely wounded, 
and acted his part in all with marked gallantry and distinc- 
tion. 

At the close of the war he returned to the practice of his 
profession at Woodville. His great success as a prosecutor 
had already established his reputation as an able lawyer, 
which was so greatly enhanced by other qualities of charac- 
ter, that, in 1866, he was elected judge of his district, but 
in 1868, when the State was placed under military rule, 
and before he was apprised of the designs of that power, 
and the policy of sweeping removal from office which it 
adopted, he resigned in consequence of an indignant aver- 
sion to holding office under such authority, and removed to 
Eusk, in Cherokee County. 

In 1869 he was again elected to the office of district 
attorney, the duties of which he had so ably performed in 
the first years of his majority, and served until that office 
was abolished in that district by the Constitution of 1870. 
In 1879 he was appointed by Governor Coke one of the 
committee to codify the laws under the new Constitution, 
and the revised code owes much of its merit to his genius 
and experience. In the spring of 1882 he was appointed 
by Governor Roberts one of the judges of the Court of 
Appeals, to fill a vacancy occaisioned by the death of Judge 
Winkler, and in the fall of that year was elected to the 
same position by the people, and which he still occupies. 

In 1883 Judge Willson prepared and published, in con- 
junction with Judge White, a combined report and digest 
of the civil cases decided by the Court of Appeals, to 
supply a want arising from the lack of any provision of 
law for the publication of the decisions of that court in the 



340 BENCH AND BAR OF TEXAS. 

civil branch of jurisprudence. Its design is strikingly 
novel and ingenius, and it is a work of great merit and 
ability. 

As a lawyer, his studious, painstaking and exact analj'sis, 
his clear perception and excellent judgment, made him a 
safe. legal pilot and counselor. , He possesses a thorough 
knowledge of legal principles, and these he makes the basis 
of the solution of every question ; and, if it be true that 
genius is a capacity for intense and intelligent labor. Judge 
Willson possesses an ample measure of that quality. 
Naturally vigorous in both his mental and physical powers, 
he has cultivated the capacity for severe and proloncred 
intellectual labor, directed by a minute observation, a well 
arranged and uniform method, a closely calculated accuracy 
and a prompt punctmvlity and dispatch. 

As a judge he is stern in the performance of duty and in 
the pursuit of justice. But while his judgments are moulded 
from an inexorable interpretation of fact and a strict and 
logical application of law, their frown is softened by a con- 
scientious regard foi* every personal right. He never evades 
a question, nor hesitates to front a fact, but promptly de- 
cides every issue presented in a case, necessary to establish 
a principle or to determine the rights of the parties. His 
decisions open wide the door of justice, and while he cites 
authorities abundantly, he does not deal with a question 
second-handed alone, through the perceptions of others, 
nor does he see it simply through the dusty glasses of prec- 
edent, regardless of the varied colors of circumstance, 
but impresses his decisions with his own views and his own 
judgment in reference to the particular state of facts in- 
volved. 

Personally, Judge Willson is a man of exceedingly kind 
and amiable disposition. Calm, mild and self-possessed, 
he is courteous in his manner, and a warm and constant 
friend. He was married in 1853 to Miss Susan E. Priest, 
an excellent and cultured young lady of Woodville, and 
the daughter of his legal preceptor. Since his appointment 
to the bench he has resided in Austin, where as a citizen he 



SAMUEL A. WILLSOX. 341 

is no less esteemed than as a judge of a tribunal whose pro- 
ficiency and personnel might challenge comparison with any 
court in any country. 

One of the first important Judicial acts of Judge Willson 
was his declaration, in Williams v. The State, 12 Texas Court 
of Appeals, 395, of the unconstitutionality of the act of 1881, 
known as " the common sense indictment act." In this 
act the Legislature had authorized and prescribed forms of 
indictment dispensing with statements which at common 
law had always been considered as essential to the description 
of the offense. In this case he decided in an able and un- 
answerable opinion that the import and attributes of the 
term "indictment" must be taken to be the same which 
it bore when it was adopted in the bill of rights, and that 
the Legislature had no power to change them; nor could 
the words, "take, steal and carry away," or any other like 
terms, be construed by application or intendment to con- 
stitute a sufiicient description of the crime of theft. This 
was followed by a number of affirmatory decisions and the 
act was repealed. 

In Robertson v. The State, Ibid. 548, he decided the 
question, in regard to which there were many conflicting 
authorities, that the Legislature can revoke an occupation 
license at pleasure, and that, therefore, the sale of spirituous 
liquors, under a license previously granted in a locality sub- 
jected to the operation of the local option act, subjects the 
vendor to the penalty of its violation. But in his dissenting 
opinion in the case of Holly v. The State, 14 Texas Court of 
Appeals, 517, he held that while a reasonable doubt must be 
weighed in favor of the validity of legislative acts, and that 
an implication of the want of power in the Legislature 
must be clear and strong to authorize the judiciary to 
invalidate its acts, the clause of the Constitution requiring 
the Legislature to enact the prohibition of the sale of in- 
toxicating liquor under certain circumstances, does not 
empower it to make the simple gift of liquor an offense, 
unless the gift was made for the purpose of evading the 
law. 

Civil rights of negroes. Cavitt v. The State, 15 Texas, 



342 BENCH AND BAR OF TEXAS. 

Court of Appeals, 196. In Texas, courts have no power 
to revise or control the action of commissioners in the 
selection of jurors unless in clear cases of fraud or cor- 
ruption, or of some great wrong calculated to shock the 
sense of justice or defeat the ends of law ; and while 
the statute does not require the commissioners to consider 
the question of race or color in the selection of jurors, 
it does not prohibit them from this discretion. Upon 
this subject the law is wisely silent. 

In Shultz V. The State, 15 Texas Court of Appeals, 
258, he held that the constitutionality of the statute au- 
thorizing an indictment to be substituted by the district 
or county attorney for an original one which has been lost, 
and whether such substituted instrument is an indictment 
of a g7^and jury as required by the bill of rights, are open 
questions ; and that it is safer in such cases to have another 
indictment returned by the grand jury. When, however, 
an original indictment has been answered by plea, there 
can be no question that its loss can be remedied by the 
statutory method of substitution ; for, in that case, no 
right of the accused is imperiled. 

The revisors of the Penal Code introduced a new statute, 
before that time unknown to the laws of the State, makins: it 
criminal slander to impute the want of chastity to a female. 
Judge Willson wrote the first opinions construing this stat- 
ute, and in Layerone v. The State, 12 Court of Appeals, 426, 
he held that the indictment must set forth, at least sub- 
stantially, the language or writing which constituted the 
imputation ; and on rehearing, in Patterson v. The State, 
Ibid. 458, which had been decided to the contrary when he 
came upon the bench, he held, in an able opinion, that the 
defendant in actions of this character must confine himself 
to evidence in proof of the particular acts or conduct 
upon wiiich he based his imputation, or of the general 
reputation of the female at the time the alleged slander 
was uttered. 

In King v. The State, 13 Texas Court of Appeals, his opin- 
ion clearly defines the character of the plea of self-defense and 
the rules which govern it in Texas jurisprudence, and in 



SAMUEL A. WILLSON. 343 

Jones V. The State, lb. 1, he reviews the previous decisions 
in regard to the burden of proof and ably elucidates the 
principles and rules which obtain in relation to that subject. 

In LaNorris v. The State, 13 Texas Court of Appeals, 33, 
the conductor in charge of a Pullman sleeping car was charged 
with maintaining a bar and retailing intoxicating drinks to 
passengers without having paid the tax occupation required 
by the statute. Judge Willson held that the circumstance 
of locomotion did not prevent the liability of the conductor 
and that an employe who sells an article when the occupa- 
tion tax is unpaid is equally liable with his principal. This 
decision abolished the nefarious traffic which had become 
prevalent on the railroad lines in the State. 

In his separate opinion in Morgan v. The State, 16 Texas 
Court of Appeals, 628, he discusses elaborately the new and 
interesting question as to the effect of gross neglect and 
improper treatment of wounds in modifying the degree of 
guilt, and construes the Texas statute to be in contraven- 
tion of the common-law rules in regard to the subject, so 
far as to shift the guilt of homicide from the person who 
inflicted the wound to the physician or surgeon through 
whose neglect or maltreatment death ensues. In this view 
of the question he received the concurrence of Judge White. 

Judge Willson has also decided many important civil cases. 
In G. C. & S. F. Eailroad Company v. Graves, White 
& Wilson, Con. Rep. 301, he rendered the first decision in 
Texas as to the effect and import of the word damage in 
the present Constitution of the State, which has been 
approved by the Supreme Court, in 60 Texas, 656. His 
opinions are all written in a clear and concise manner, and 
forcibly exemplify his searching ability and sound judgment, 
and those cited present features of first impression in the 
jurisprudence of the State. Being in the prime of life and 
vigor of health, his judicial record predestines a future 
usefulness which will add new glory to the Texas bench. 



344 BENCH AND BAR OF TKXAS. 



J. M. HURT. 



James Mann Hurt was born in Carroll County, Tennessee, 
on the 15th day of December, 1830. His father, for whom 
he is named, was a native of Virginia, and a Baptist clergy- 
man, and his grandfather, Philomen Hurt, was a Virginian 
soldier in the Continental army, and served under General 
Green in the battle of Guilford Court House. His mother 
was a daughter of David Marshall, of Richmond, Virginia, 
who removed at an early day to Tennessee, and was one of 
the first settlers of the town of Lebanon. 

The subject of this sketch was reared chiefly on a farm, 
but enjoyed good educational advantages at an academy in 
Kentucky, and at Bethel College. Having completed his 
education at the latter institution, he read law three years 
jn the office of Hon. Milton Brown, at Jackson, Tennessee, 
afterwards graduated in the law department of Cumberland 
University, and in February, 1857, received his license from 
the Supreme Court of Tennessee. In 1858 he married 
Miss Matilda L. Douglass, the accomplished daughter of 
Judge William Douglass, of Osceola, St. Clair County, 
Missouri, and began the practice of his profession at that 
place, but soon afterwards removed to Sherman, Texas, 
where his energy and popular traits of character soon gained 
him friends and clients, and he took a prominent stand at 
the bar. 

He had been reared a Federalist and inspired with strong 
Union proclivities, but at the outbreak of the civil war he 
cast his lot with the Confederacy, and has since been a 
staunch advocate of Democracy. He enlisted in the service 
as captain of a company of infantry, which he raised in 
Grayson County, and which formed a part of the First Texas 
battalion of sharpshooters in Maxey's brigade. He was at 



J. M. HURT. 345 

the siege of Port Hudson, and afterwards served under 
General Joseph E. Johnston in his campaign for the relief 
of Vicksburg. In December, 1863, he was ordered with 
his company to the Trans-Mississippi department, and served 
under General Maxey until the surrender, when he marched 
his company back to Grayson County, and there disbanded it. 

In 1866 he was a member of the Constitutional conven- 
tion, assembled to re-organize the State government under 
the Johnson reconstruction, and was an active and efficient 
member, particularly in his efforts to preserve the rights of 
the people and the dignity of the State. He was soon 
afterwards appointed by Governor Throckmorton district- 
attorney, and acquired the reputation of being one of the 
best prosecutors in the State ; but in 1867, in consequence 
of his inability to take the oath imposed at that time upon 
Southern officials, he resigned his office and returned to his 
practice. 

In 1870 he was re-appointed by Governor Davis, and 
accepted the position with the understanding that his politi- 
cal principles should suffer no restraint. This was subse- 
quently found to be entirely imcompatible with the violent 
Republican policy of the administration, and, in 1871, he 
was removed without notice to make way for a compliant 
incumbent. On returning to the bar he found his practice 
large, particularly in the criminal branch of the law, and in 
1876 he removed to Dallas, where his practice embraced a 
still larger field. 

In 1880 he was elected one of the three judges of the 
Texas Court of Appeals, a position which he continues 
to fill with ability and honor. He is a man of talent, 
a lawyer of ability, and a first-rate judge. His percep- 
tions are remarkably quick and acute, and he is an 
excellent judge of law. His ready and accurate interpre- 
tation of the motives of men and the springs of human 
action, his knowledge of the methods of law by which 
these are reached, and its application to all the varied 
features of crime, render him one of the best criminal 
lawyers in Texas, and peculiarly qualified for the bench of 
criminal appeals. He seems to abhor mere technicalities, 
and during his career upon the bench has almost invariably 



346 BENCH AND BAR OF TEXAS. 

• 

dissented from every opinion of his associates based chiefly 
upon mere technical questions. He delights in pursuing 
the unhedged path of fact, and brushing away the trammels 
of antiquated forms, drive straight at the crest of crime 
and the grist of the offense. Yet, he is an amiable and kind- 
hearted man, full of good-natured humor, and an admirable 
companion. 

He possessed in a high degree that sparkling mirth and 
living amiability which laps away more brambles, levels 
down more hillocks, surmounts more obstacles of life, and 
confers upon its possessor more true happiness than any 
other attribute of human nature. Power may reach the 
limits of its control ; force may blunt its weapons against 
the dull hide of obstinacy ; reason may exhaust in vain its 
logic upon the dull ear of perversity, and the unction of 
suasion may congeal before the cold threshold of misan- 
thropy; but good nature wields a soothing influence over 
the most obdurate circumstance, and binds the sternest fate 
a captive to its charms. 

Notwithstanding its discountenance by the mock dignity 
of asceticism, and the pharisaical gravity of the self-right- 
eous, a merry humor rarely fails to find a kindling recipro- 
cation in the bosom of the most embittered misanthrope. 
It is indeed the most efficacious antidote to that more preva- 
lent spirit which not only magnifies the ills of life, but 
soars away upon the wings of excursion in search not of the 
olive branch of hope, but of the rising peaks of sorrows 
which it knows not of. 

The hilarious man dispenses a contagious cheerfulness 
which penetrates and often dispels the most settled gloom. 
He weaves the garlands of pleasantry of the very thorns 
of life, and hangs a rose upon every thistle. Such a man 
is truly a promoter of philanthropy, and such is in a high 
degree the character of Judge Hurt. He is always equally 
apt and ready for a capital trial or a capital joke. 

At the bar his main fort lay in his art of captivating the 
jury, an effect which his humor and abundant store of 
pleasing anecdote rarely failed to accomplish. In variety 
of humor and sparkling repartee he is perhaps more like 
Curran than any other member of the Texas bar. 



J. M. HURT. 347 

His analysis of the character and incidents of the plea of 
insanity in King v. The State, 9 Texas Court of Appeals, 
515, frojn which the other judges dissented, is novel and 
ingenious. The chief question presented was : — 

When the plea of insanity is interposed, is the burden of 
proof on the State to show sanity, or is it on the defendant 
to show insanity? 

In discussing this proposition he said : — 

" Brush from this question the dust of ancient days, sepa- 
rate it from its old companions, and its solution is perfectly 
simple. Before entering upon an analysis of this subject, 
permit us to allude to some very strange and inconsistent 
expressions used by the learned judges in treating of this 
question. The following are of the number alluded to: 
'As insanity excuses the commission of crime, on the ground 
that the actor is not a responsible being,' etc. ' The onus 
of proving the defense of insanity, or, in the case of lunacy, 
of showing that the offense was committed when the pris- 
oner was in a state of lunacy, lies upon the prisoner.' ' It 
is rather in the nature of a^j?m to the jurisdiction, or a mo- 
tion to change the venue. The defendant, through his coun- 
sel and friends, comes in and says that he is not amenable 
to penal jurisdiction.' A very respectable volume could 
be made of such remaks, but those cited will suffice for 
our purpose. 

" Let us take a steady look, for a moment, at these propo- 
sitions. For example, take the first. What sane mind can 
comprehend the possibility of a crime being committed by 
an insane person ? If the prisoner is insane, there is no 
crime. If there be crime, there is no insanity. Insanity 
can not excuse crime, from the fact that, if insane, there is 
no crime to be excused. These observations apply to the 
second. Now to the third : ' Plea in the nature of a 
plea to the jurisdiction.' This plea never draws in issue 
the guilt of the prisoner. Under this plea, sanity or insan- 
ity ivoidd be the issue, separate and independent from the 
question of guilt, to be determined. But the court has 
jurisdiction of the crime, if any has been committed ; and 
how are we to sever the one from the other? Shall we first 



348 BENCH AND BAR OF TEXAS. 

try the question of sanity, and then that of guilt? Not so ; 
for on the threshold we are met with the fact that, under 
the plea of not guilty, evidence on the question of sanity 
can be introduced. Behold what darkness and confusion 
surround the question of sanity ! a subject around which 
gather more vagaries and inconsistencies than infest any 
other question in the whole range of criminal jurispru- 
dence. 

" But what shall be said upon the proposition that the plea 
is ' in the nature of a motion to change the venue?' If 
there is the faintest, the most remote analogy existing be- 
tween the plea and a motion to change the venue of a case, 
we frankly confess our inability to trace it. We had thought 
the object of a motion to change the venue Avas to remove 
a cause from the county in which the indictment was found 
to some other one for trial, and that the ground of removal 
was based upon the fact that an impartial trial could not be 
had in the proper county — that in which the indictment 
was found. To what court or county shall it be taken? 
Will not the same reasons for the change be found in the 
court or county to which it is transferred? Most unques- 
tionably they will. These conclusions being true, the case 
could only find a court of last resort in the tribunal of 
heaven. This would defeat the ends of human justice, since 
the primal idea upon which it is based carries with it the 
further idea of human expiation for human wrong. 

" Those strange and inconsistent expressions which we find 
in the writings of eminent text-authors are the legitimate 
ofispring of fundamental error which underlies their treat- 
ment of this entire subject, and we merely allude to them 
here to intensify and concentrate attention upon this parent 
error, from whose fruitful loins have sprung all of these ill- 
considered statements upon this question of sanity. In 
jurisprudence nothing can be more valuable than terse state- 
ments of principle. On the other hand, hastily conceived 
and unhappily worded enunciations not infrequently open 
the flood-gates of litigation, with its vast attendant expense, 
and lead to judicial murder under all the forms and solemni- 
ties of the law. 



J. M. HURT. 349 

*' The fiillacy of this fundamental error can be made more 
fully to appear by comparing two propositions : — 

" 1. Sanity is an inherent^ intrinsic element of crime. 

"2. Sanity is not an inherent and intrmsic element, but 
is extrinsic and independent of the crime. 

" The last proposition contains a monstrous fallac}', the 
fruits of which are visible in so many of the text-books, and 
which are followed out in manj' of the enunciations in the 
adjudicated cases. If sanity is an inherent element of 
crime, no well-ordered mind can stop short of the conclu 
sion that the State must carry its burden and prove it. 
Feelins: the force of this, writers have treated it as an ex- 
trinsic matter, separate and distinct from the question of 
guilt, and hence those strange and incomprehensible expres- 
sions above referred to. 

" Let us pay our re&pects to this last proposition, and see 
if from a bare touch it will not crumble to dust. ' Sanity 
is extrinsic.^ Therefore the prisoner is to be tried for the 
act, and the question of intent or malice is not drawn in is- 
sue. This for the simple reason that an issue formed upon 
the question of intent or malice irresistibly includes that of 
sanity ; for there can he no intent or malice without sanity. 
Therefore it follows from this erroneous position that the 
jury, in viewing the act sought to be punished, must strip it 
of the intent which prompted it, and look alone to the act. 
To this we enter our solemn protest. 

" We now invite attention to what we believe to be the true 
position, whi<;h is that sanity is an inherent, intrinsic, and 
necessary element of crime. Is this a correct proposition? 
Is it not a self-evident proposition? If murder can be com- 
mitted without intent or malice, then the jDroposition is 
false ; if not, it is true. But we do know, if it be possible 
to know anything, that, to constitute murder, the act of 
killing must be attended not only with the intent to kill, 
but with malice; and Ave also know, with the same degree 
of certainty, that there can be no intent or malice without 
sanity. It therefore follows, beyond any shadow of doubt, 
tiiat sanity is an inherent, intrinsic, and necessary ingredi- 
ent of crime. 



350 BENCH AND BAR OF TEXAS. 

" We now return to the first proposition stated at the be- 
ginning of this opinion, which is as follows: 'When the 
plea of insanity is interposed, is the burden of proof on the 
State to show sanity, or is it on the defendant to prove in- 
sanity ? ' We have thus stated the proposition because we 
find it so stated in the books, but it is not a practical one. 
There is no such plea known to our Code as applicable to a 
trial of a criminal cause. We have four pleas — two spe- 
cial, and the pleas of ' guilty ' and ' not guilty ' — and 
this plea of ' not guilty ' is a denial of every material alle- 
gation in the indictment. Under it, evidence to establish 
the insanity of the defendant, and every fact whatever tend- 
ing to acquit him, maybe introduced. It follows that under 
this plea the defendant denies every constituent element of 
the offense charged, and this plea of ' not guilty ' is the 
same as if the defendant had denied specifically each ele- 
ment of the crime charged. 

" This leads us to the consideration of the charge in this 
case, which is murder, and is defined thus : ' Every person 
with a sound memory and discretion who shall unlawfully 
kill any reasonable creature in being, within this State, with 
malice aforethought, either express or implied, shall be 
deemed guilty of murder.' From this definition it follows 
that, to constitute this offense, the slayer must be ' of sound 
memory and discretion ; ' a ' reasonable creature ' must 
be slain, and the slayer must be actuated by « malice.' 
We have then, first, ' sound memory ' in the slayer; sec- 
ond, a ' reasonable creature ' slain ; and the slayer 
prompted by ' malice.' These constitute murder, and 
nothing less than all these can constitute murder. By what 
principle of logic, reason, or justice can either of these ele- 
ments be eliminated from the offense? From this it follows 
that an indictment charging this offense embraces all the 
above elements, whether specifically named or not; and 
though the indictment omits to chars^e that the defendant 
was of 'sound memory,' yet charging 'malice,' sanitij 
is necessarily included. The problem which equals mur- 
der is composed of three members: First, 'sound mem- 



J. M. HURT. 351 

ory ' of slayer; second, 'reasonable creature' slain; and, 
third, ' malice ' in the slayer. 

" Let us see if we can eliminate from this problem one of 
these members, and leave every element of the offense in 
the problem. There can be no 'malice' without sanity ; 
hence, ' malice ' includes sanity. We therefore have, first, 
a ' reasonable creature ' slain ; second, a malicious slayer — 
murder. Hence the charge in the indictment, that the kill- 
ing was with ' malice aforethought,' charges the slayer to 
be of ' sound memory and discretion.' If this conclusion 
is not correct, we most unhesitatingly assert that the mdict- 
ment is worthless ; for we have found, under our Code, 
sanity to be an element of murder^ and, by well-settled 
rules of criminal pleading, an indictment which fails to 
embrace in its allegations all of the constituent elements of 
the offense is fatally defective. The authorities approach 
nearer to unanimity upon this question than any other 
known to us. 

"If the above analysis be correct, and we think it is, it 
devolves upon the State to prove every inherent element 
of the offense ; and as we have found sanity to be such 
an element, it rests upon the State to prove sanity. 
Still holding with a firm grasp the proposition that sanity 
is an inherent element of the offense, and as there is no 
such thing in law as separating the elements of an offense 
so as to cast the burden of a part upon the State, and, as to 
the rest, to require the defendant to take the burden of 
proving a negative, it follows that the existence of each ele- 
ment is an affirmative proposition, the proof of which rests 
with the State. The idea that the burden of proof shifts 
is in direct conflict with the philosophy of criminal juris- 
prudence, and at war with fundamental principles ; for we 
hold that, with regard to necessary ingredients, it never 
shifts. If two or more elements constitute an offense, 
which of these elements must be proven by the State, and 
which must be proven not to exist by the defendant? If 
elements, do they not all stand upon the same plane, or are 
there some which prove themselves? If there are, they are 
not elements. Are we to require the defendant to prove the 



352 BENCH AND BAR OF TEXAS. 

non-existence of that element — insanity — upon which in- 
tent and malice depend, and yet hold the State to prove in- 
tent and malice'^ To us it is impossible to harmonize, 
logically, these positions. 

" We are now led to meet the most plausible, difficult, and 
potent position which can be assumed upon the other side. 
And here we concede that it is supported by the weight of 
authority ; but we do not think it is founded in principle, 
and if not founded in principle, to follow would be danger- 
ous. It is this: The fact of killing being admitted, and 
that beyond doubt the prisoner did the killing, and sanity 
being the normal condition of all persons, the law presumes 
the prisoner sane until he shows to the contrary ; and there- 
fore the burden of proving insanity rests with the prisoner. 
It will be seen at once that the struggle is with this pre- 
sumption of sanity. 

*' Let us move quietly but closely up to this gentleman, 
and try to see who he is. The name of this witness is pre- 
sumption. He is a venerable gentleman. He was contem- 
porary witn the first-born principles of enlightened 
jurisprudence. For truth and integrity he has never been 
excelled by any witness. His means of knowledge are un- 
surpassed, having for a foundation the laws of nature, and 
the truth of his evidence is corroborated by the experience 
of man through all ages. The effect of his evidence is the 
production of not only a mere prima facie case, but full and 
complete conviction when not opposed. Upon his evidence 
alone, when not contradicted, sanity being the only issue, 
man has been made to expiate the violated law with his life. 
When he speaks to the sanity of the prisoner, his evidence 
meets with an approving response in the mind of every in- 
telligent and honest juror, for their experience corroborates 
his testimony. But he is not infallible. He never testifies 
to the sanity of any particular individual. He is never 
jwsilive, but alwaj^'s presumptive evidence. Sanity being 
the normal condition of man, he presumes that to l)e the 
condition of the prisoner. With the parents or relatives of 
the prisoner he is not acquainted. He is not aware of the 
fact that perhaps some of the prisoner's blood-relatives are 



J. M. HURT. 353 

\V)\x inmates of an asylum for the insane. Though his locks 
are bleached by the winters of ages ; though he has never 
been charged with prejudice, and though his evidence is 
supported by the laws of nature and corroborated by the 
experience of man, yet he is somewhat arbitrary. He places 
the prisoner in the normal condition of man, which is san- 
ity, and demands of him the same conduct whether sane or 
insane. He never heard of insanity, because he speaks 
alone from the laws of nature, and insanity being an excep- 
tion to the natural rule, they are unacquainted. With the 
prisoner's language, conduct, or misfortunes he has nothing 
to do, and of them he is entirely ignorant. Yet he holds 
him with an iron grasp to the law^s of nature and the expe- 
rience of man. Is he omnipotent? How many witnesses 
are necessary to measure arms with this Titan? Does he 
partake of the kingly character, and can he ' do no wrong? ' 
Upon the testimony of one witness alone, the prisoner may 
be legally convicted and executed. Can this gentleman's 
evidence accomplish more? In no case can he accomplish 
more than can be effected by the evidence of one wimess. 
We do not mean the evidence of any witness. Can the 
evidence of one witness ever be an overmatch for him? 
In some cases it legally and justly can ; in others the testi- 
mony of scores will not suffice, this depending always 
upon the character of the witnesses, their means of knowl- 
edge, and the facts sivorn to. 

" Having endeavored to become somewhat acquainted with 
this witness j^'f^ sumption, we now desire to call special at- 
tention to a very remarkable feature of his character. It 
is conceded by all that his evidence is relied upon, and is 
absolutely necessary to convict, in a great many cases 
in which the question of sanity is not involved. It is also 
conceded, under our decisions, that in tliese very cases the 
burden of proof does not shift, but remains with the State 
throughout. Now, upon what principle of logic or justice 
can we give to this presumption so much power in a case 
involving the question of sanity as to sJiift the burden to 
the prisoner, and in the other cases hold that it does not 
shift?'' 

23 



354 BENCH AND BAR OF TEXAS- 



A. S. WALKER. 



This excellent judge and profound lawyer was born 
near Brownsburg, in Rockbridge County, Virginia, on the 
eighteenth day of August, 1826. His parents were of 
Scotch-Irish descent, and his father was a farmer. His 
opportunities for an education were ample, and he gradu- 
ated in 1850 at Hanover College, Indiana, from which he re- 
ceived the degree of Master of Arts in 1854. He immigrated 
to Texas in January, 1852, and taught school at Manayunk, 
on the San Jacinto River, in Harris County, and while 
thus engaged prepared himself for the bar under the advice 
of David G. Burnett and J. Pinckney Henderson, who also 
gave him the use of their books. In January, 1853, he 
obtained his professional license from Judge C. W. Buckley, 
at Houston, and in July located at Georgetown, where he 
was* soon afterwards appointed district clerk by Judge 
R. E. B. Baylor to fill the vacancy of a fractional term in 
that oiEce, occasioned by the resignation of the incumbent. 
In 1854 he began his practice at the bar, and in 1858 was 
elected district attorney of the Seventeenth Judicial Dis- 
trict. In 1862 he was elected^ district judge, but was 
removed from the bench in 1865 by the military power as 
an impediment to reconstruction. 

While at the bar of Georgetown Judge Walker was 
associated with A. J. Strickland, and, after his death, 
formed a copartnership with Colonel Richard Sansom, to 
which A. H. Chalmers was subsequently admitted. In 
1865, having associated with Morrison H. Bowers, he re- 
moved to Austin, and after his death, in 1872, he formed 
a copartnership with Judge A. W. Terrell, which continued 
until he left the bar. 

On the organization of the Court of Commission of 



A. S. WALKER. 355 

Appeals, in 1879, he was appointed by Governor Eobeits 
one of the judges of that bench ; but held his office onl}^ a 
short time before he resigned in order to accept that of dis- 
trict judge, to which he had been elected by the people of the 
Sixteenth Judicial District, without canvass or solicitation. 
In 1884 he was re-elected without opposition, and holds 
that position at the present time. 

The ruling traits of his character are a deep love of 
justice, an unswerving integrity, and an abiding strictness 
in the performance of duty. He is a thorough master 
of the principles of law, untiring in his search for truth, 
calm and conscientious in his conclusions, and no art of 
casuistry can induce him to abandon an opinion formed 
from an impartial judgment, and fortified by reason and 
sound sense. Yet he is patient and courteous in his defer- 
ence to the opinions of others and to the views of opposi- 
tion ; and Avhile he is firm in maintaining his own honest 
convictions, he never challenges the sincerity of others. 

These traits eminently qualify him for the bench, and 
few judges ever enjoyed greater confidence on the part of 
both the bar and the people. His opinions are generally 
accepted as conclusive of the questions at issue, and as 
lights along the path of justice. While he is stern and 
inflexible in the enforcement of the law, his opinions are 
always so tempered witli manifest rectitude and impar- 
tiality that they receive the homage of satisfaction from the 
most disappointed client. 

Judge Walker brings these traits of his character to bear 
equally upon all his dealings with men, and in all the 
relations of life his actions are guided by the beacons of 
duty which swing from his judicial censor and illumine 
the bench. 



356 BENCH AND BAR OF TEXAS. 



GEORGE Clark. 



The subject of this sketch was born in Eutaw, Ahibama, 
on the 18th day of July, 1841. His father, James B, Clark, 
was a native of Pennsylvania, and a lawyer by profession. 
He removedto Alabama in 1822 and became a distinguished 
judge in that State where he presided as chancellor for 
nearly eighteen years, and died in 1873 at an extreme age. 
His mother was formerly Mary Erwin, a native of 
Virginia. 

George Clark received the best training afforded by the 
schools of his native town and completed his education at 
the University of Alabama, where he also studied law; 
but in June, 1861, he abandoned his studies and enlisted in 
the Confederate army as lieutenant in the Eleventh Regi- 
ment of Alabama infantry, and in 1862 was promoted to 
the rank of captain. He participated in all the great battles 
of the Army of Northern Virginia, was wounded at Gaines' 
Mill, Gettysburg and Ream's Station, and stood in the last 
defiant line at Appomattox. 

At the close of the war he returned to Alabama, and in 
1866 was admitted to the bar, and began the practice 
of his profession at Eutaw; in January, 1867, he removed 
to Texas and located at Weatherford, but in December, 
1868, settled permanently at Waco, where he still resides, 
in the enjoyment of a large practice. 

During the trouble with the Radical incumbents, occasioned 
by the installation of Governor Coke and the Democratic 
State ticket, in 1874, he was placed temporaril}^ in charge 
of the office of Secretary of State under the incoming 
administration, and was soon afterwards made Attorney- 
General of Texas, which position he held until 1876, when, 
his office being vacated by the intervention of the new 



GEORGE CLARi^. 357 

Constitution, he was appointed one of tlie committee to 
revise the laws of the State. In 1879 he was appointed 
one of the judges of the Court of Appeals, but resigned in 
October, 1880, and has since that time devoted himself 
exclusively to his profession. 

In all these official stations Judge Clark while being, 
perhaps, the youngest man who had ever held either of them 
in the State, performed his duties with an ability and 
fidelity which render his career most honorable and brill- 
iant, and he is a man to whom Texas may well look for 
eminent services in the future. Modest, retired and devoted 
to the duties of his profession, his qualities and success as 
a lawyer engage the most implicit confidence of his clients, 
and invite a large patronage. 

His decisions upon the bench of Appeals evince a vigilant 
and painstaking research, present a clear and conscientious 
exposition of the law, and an unswerving pursuit of justice. 
He is a man of great frankness and candor, and so marked 
are these traits of his chai'acter, that the author was, on his 
first acquaintance with him, disposed to impute to him also 
an element of captiousness ; but he soon found that under- 
neath his open and outspoken exterior attributes, no man 
possessed a kinder heart, a more courteous gentility, or a 
keener sensitiveness in regard to the feelings of others, and 
the ethics of a true gentleman. 

He is a lawyer of excellent ability, and loves his profes- 
sion with the fondness of a devotee. He sees in its ample 
field more than a mere harvest of fees and political garlands. 
He sees in it the crops of noble possibilities, of honorable 
achievement, of virtuous excellence, the highest good of 
society — the myrtle as well as the laurel. He possesses 
the habits and powers of intense and vigorous application. 
His perceptions are acute and concentrative, and his com- 
prehension ready and penetrating, which with an extensive 
and accurate knowledge of law, and sound judgment, render 
him a safe counselor and a successful advocate ; and as a 
criminal lawyer, he has few if any superiors in the State. 
His able opinion in Rothschild v. The State, 7 Texas 
Court of Appeals, 519, settled a question which had been 



358 BENCH AND BAR OF TEXAS. 

held ill perplexing conflict both in Texas and other States. 
This was in regard to the competency of a juror in a crim- 
inal case who had formed and expressed an opinion from 
rumor and general report. The juror was examined upon 
his voir dire in the court below, as follows : — 

" Q- Would we have to introduce evidence to change 
your opinion, or would you still entertain that opinion and 
act on it? 

"A. If the evidence comes in the same as I have heard, 
of course I would believe it. 

" Q- What J want to know is this: You say that you 
have an opinion — would you change that opinion if we 
were to introduce some testimony that the man was not 
guilty? 

"A. Yes, sir; I suppose so. 

" Q. If we did not do that, your opinion is formed con- 
clusively ? 

"A. If the evidence is the same as I have heard it. 

" Q. Then you have made that opinion an established 
opinion, granting that the evidence is the same as that upon 
which your conclusion is formed? 

" A. Yes, sir. 

" Q. Unless you hear something else, you will maintain 
the opinion you have ? 

*« A. Yes, sir." 

In reply to a question propounded by the court, the juror 
stated that if what he had heard was true, then he had an 
opinion, but if it was not true he should not act upon it. 

The district judge overruled the objection for cause, and 
the defend.ant having exhausted his peremptory challenges 
upon others presented, who had made similar statements, 
tile juror vras sworn in and sat upon the trial. 

The question of the qualification and competency of ju- 
rors has been long agitated by the courts, both of England 
and America, and since the decision of Cliief Justice Mar- 
shall on the trial of Aaron Burr, who held that "to have 
formed and delivered an opinion was sufficient to exclude 
from the jury, but that slight impressions on the mind were 
not sufficient," the question has continually recurred as to 



GEORGE CLARK. 359 

what constitutes a fixed and predetermined opinion as dis- 
tinguished from a mere hypothetical impression. In the 
case of Ex parte Vermilyea, 6 Cowan, 563, Mr. Justice 
Woodworth says that : — 

" To have formed and expressed an opinion from a knowl- 
edge of the facts is good cause of challenge, and it can not 
be material from what source the knowledge was derived, 
if the bias proceeds from a preconceived opinion, it equally 
affects the accused. Chief Justice Spencer, in the case of 
Vanalstyne, held that if a juror had formed and expressed his 
opinion from a knowledge of the facts, or from the informa- 
tion of those acquainted with the facts, it was good cause 
for challenge, but not if it was formed from mere rumor 
and report. Judge Iredell declared in the case of Fries 
that ' whenever a predetermined opinion is formed from 
whatever motives it creates an improper bias, extremely 
difficult to get rid of,' and the same doctrine is held by 
Mr. Justice Maxey in the case of The People v. Mather, 4 
AYendell, 229. 

In Mississippi the question arose from the peculiar form 
of the interrogatory put to the juror, who was asked whether 
he had formed or expressed, instead of formed and ex- 
pressed, an opinion, that would influence him as a juror. 
The court, on referring; to the reason iriven in the books for 
the conjunctive form of the interrogatory — that a man 
who has made up his opinion and expressed it aloud is more 
apt to adhere to it than if he had kept it concealed — say 
" This reason is not satisfactory. We think that "if a 
juror has made up a fixed opinion from the knowledge of 
the facts, although he has kept that opinion locked up in 
his own heart, he is not a competent juror, but if he has 
onlv fashioned in his mind an opinion from report, and has 
not given utterance to that opinion it would not be suffi- 
cient to exclude him. An impartial juror is one whose 
mind is open to receive the impressions to be made by the 
testimony ; one wdiose mind is poised upon the scales of in- 
difference, and ciipable of weighing the testimony adduced 
on the trial in opposition to floating rumors." 



3()0 BENCH AND BAK OF TEXAS. 

" It is vain," says Mr. Bishop, "for a man to say, or 
even believe, that lie can judge impartially of a matter 
which he has already determined ; for his mind, which ought 
at least to be a blank on which the evidence might write its 
conclusions, is already occupied. Human nature, as de- 
veloped in the average of men, does not permit this. The 
juror is to hear, and then say, what he believes ; but if he be- 
lieves before hearing that only which can lawfully affect his 
opinion, namely, the testimony of witnesses in open court, he 
is, in legal reason, disquahfied to hear and be swayed by the 
testimony. It is immaterial, therefore, whether the belief, 
which comes not according to law, is derived from rumor or 
from testimony to the statements of a more reliable sort." 

In view of these principles and the dictates of justice. 
Judge Clark reversed the judgment against Rothschild and 
remanded the case for further proceedings, in accordance 
with the forms of law. But the victim of the murder was 
a lone and defenseless woman, who had but recently taken 
up her abode in the community. The circumstances of the 
crime were exceedingly aggravating and revolting, and so 
strong was the prejudice and indignation of public senti- 
ment against the criminal that the technicality, as it was 
called, of the decision which delayed the execution of public 
vengeance met with public disfavor and, no doubt, contrib- 
uted largely to the defeat of his deserved renomination for 
the ofEce he held — the result of a mistaken public opinion. 



A. T. WATTS. 361 



A. T. Watts. 



Arthur Thomas AVatts, one of the judges of the Court of 
Commission of Appeals, was born in Covington County, 
Mississippi, on the 31st of August, 1837. His parents 
were- natives of Georgia, but settled in Mississippi prior to 
the organization of the State government, and in 1841 re- 
moved to Texas and located in Polk County. Arthur 
received his education at Zion Seminary in Mississippi, and 
read law under the supervision of Hon. John E. McNair, a 
prominent judge of that State. He afterwards joined his 
father's family in Texas, and was admitted to the bar in 
Polk County in 1859, when he began the practice of his 
profession; but when the war began in 1861, he returned 
to Mississippi and enlisted in the Sixteenth Mississippi 
Regiment, in which he served as a private during the entire 
continuance of hostilities, in the Army of Northern Vir- 
ginia. He was with Stonewall Jackson during his celebrated 
campaign in the valley, and shared in all its glorious victo- 
ries. He was wounded at the second battle of Manassas, 
and again at Spottsylvania Court-house, on the 12th of 
May, 1864. 

At the close of the war he returned to Texas and resumed 
the practice of law. The result of the war had swept away 
his means, and he found himself in necessitous circum- 
stances ; but his energy and determination overcame the 
difficulties which surrounded him, and success crowned his 
professional efforts. He was a young man of great per- 
sonal popularity, and his ability being promptly recognized, 
he soon obtained a large portion of the practice in his judi- 
cial district. 

In 1872 he was elected a member of the Thirteenth 
Legislalure, and participated vigorously in the summary 



3()2 BENCH AND BAR OF TEXAS. 

repeal of the obnoxious laws which had been fastened upon 
the people of Texas by the corrupt and oppressive policy 
of Kadical rule, and in the new legislation necessary to re- 
store their liberty to the people and place the State in its 
former orbit of freedom and prosperity. He deserved 
particular credit for his part in effecting an arrangement 
with the Texas and Pacific Railroad, by which land grants 
were substituted for the enormous debt due by the State to 
that corporation, and thereby relieving the people from an 
intolerable burden of taxation. 

In 1874 he removed to Weatherford, where he enjoyed a 
fine practice, but, in 1878, sought brighter prospects in 
Dallas, where he had many friends and a more ample field. 
In 1880 he was appointed one of the judges of the Court of 
Commission of Appeals, which position he still holds and 
adorns by his energy, ability and devotion to its duties. 



W. S. DELANEY. 363 



W. S. DELANEY. 



William Shelby Delaney is a native of Kentucky, and was 
born in Union County on the 18th day of September, 1825. 
His father, Henry Field Delaney, was a native of Virginia, 
and at one time a prominent lawyer at the Kentucky bar; 
but abandoned his profession and became a noted clergy- 
man of the Cumberland Presbyterian Church. His mother, 
whose maiden name was Rhoda Prince, was a native of 
Princeton, Kentucky, a town founded by her father and 
named after him. He was one of the first three associate 
judges of Caldwell County. 

The subject of this sketch was afforded good advantages, 
and graduated at Cumberland University at Lexington, 
Kentucky, in 1847. His scholastic attainments were of a 
high order, and he was elected professor, first of mathe- 
matics and then of ancient languages in that colleire. 
While thus engaged he devoted his leisure time to the study of 
law, and on being admitted to the bar in 1852 he resigned 
his professorship and began the practice of his profession. 
In 1854 he removed to Memphis, Tennessee, and having 
subsequently located in Nashville, he removed in 1860 
from that place to Columbus, Texas, where he resided in 
the enjoyment of a large and successful practice until his 
iiromotion to the bench. As a lawver Judo;e DelancA^ has 
been remarkably successful. His fine literary education 
and scholarly attainments enabled him to grasp the prin- 
ciples of law with a scientific comprehension, and to clothe 
his arguments in cogent and logical terms. While devot- 
ing himself to the mastery of the sterner and more solid 
features of legal science he has cultivated the embellish- 
ments of the profession, and establishes his position by a 
scholarly analogy and purit^^ 



364 BENCH AND BAR OF TEXAS. 

He is a man of quiet and sedate manners, totally devoid 
of those traits which cherish a fondness for notoriety and 
a love of display. His mind is cast in the mould of a 
classic simplicity, and he delights in communing alone with 
the genius of his profession. The didactic qualities which 
he acquired and cultivated as an instructor in the chair of 
science and literature make him an excellent expounder of 
the principles of law, as verified by the scientific and logi- 
cal statements of his decisions. But while he is imbued 
with a spirit of studious inquiry, and is devoted to his 
profession, he^ has not sacrificed to its exacting demands 
the advantages presented to him by other spheres of life. 
While worshiping at the shrine of Mercury, he has also 
propitiated the favors of Plutus. He has bfeen a success- 
ful planter and man of business, and the reward of his 
energy is a handsome competence. 

In private life his habits conform to his professional 
ethics, and his refined and unobtrusive, cheerful, yet 
reserved social qualities commend him as a man of pure 
and solid character, and his integrity, uprightness and learn- 
ing make him an excellent judge. 



E. B. TURNER. 365 



E. B. TURNER. 



Ezekiel B. Turner, Judge of the United States District 
Court for tlie Western District of Texas, was born in the 
town of Putney, Windham County, Vermont, on the 24th 
of May, 1825. His parents were also natives of that State, 
in which his ancestors hiad settled at an early period, and 
belonged to the sturdy yeomanry of the country. His 
education was obtained in the common schools of his native 
town and in Townsend Academy, which he attended a 
short period. He studied law in Michigan with his brother, 
J. W. Turner, and was admitted to practice in the courts 
of that State in September, 1848. He afterwards held the 
office of justice of the peace, and was subsequently elected 
prosecuting attorney for the county of St. Joseph, Michi- 
gan. 

In 1853 he emigrated to Texas and settled first in Will- 
iamson County, where he remained one year, and then 
removed to Austin and formed a copartnership in law, first 
with S. G. Sneed, Esq., and subsequently with A. J. Ham- 
ilton and F. W. Chandler, which continued until the out- 
break of the civil war. 

Actuated by the sentiments inspired by his nativity and 
early training, he was opposed to a dissolution of the 
Union, deplored the policy of secession, and took no part 
in the war. With these views he naturally affiliated with 
the Republican party, and in 1866 was appointed by Presi- 
dent Grant to the position of United States attorney for 
the Western District of Texas, which he resigned to accept 
the office of attorney-general under the provisional gov- 
ernment, and held this position during the period of recon- 
struction. 

In 1871 he was appointed judge of the Thirty-second 



366 BENCH AND BAR OF TEXAS. 

Judicial District of Texas, and held this office until the judi- 
ciary was made elective, under the Constitution of 1875, when 
he was elected by the people to the bench of the Sixteenth 
Judicial District, and was commissioned by Governor Coke 
in April, 1876. While this was a Democratic district, he 
was elected as an independent candidate over the regular 
Democratic nominee by a handsome majority. The district 
was subsequently changed, and Travis County, which formed 
a part of the Sixteenth District was declared a special dis- 
trict, and jurisdiction conferred upon its courts to try all 
cases of perjury to land titles. Under this law most of the 
celebrated cases known as the " Texas Land Perjury Cases " 
were tried before Judge Turner in the District Court of 
Travis County, and his scrutiny and stern enforcement of 
the law had a salutary effect in putting a stop to perjury 
of land titles in the State. 

In 1880 he was appointed by President Hayes to the of- 
fice of United States judge for the Western District of Texas, 
which position he still holds. He was the first United 
States judge that decided that the act of Congress known 
as " The Civil Rights Bill,'' was unconstitutional. This 
decision was made in the case of United States v. Washing- 
ton, reported in 4 Woods Circuit Court Reports, 349, and 
was afterwards confirmed by the Supreme Court of the 
United States in cases involving the validity of the first and 
second sections of the act of March 1st, 1875, and reported 
in 109 United States Reports. 

Judge Turner has the character of being an excellent judge 
of law and a man of the staunchest integrity. He was mar- 
ried in 1850 to a daughter of Charles Dodge of Michigan, and 
this excellent lady, who has so long shared and inspired the 
brighest sunshine of his life, forms one of that circle of 
noble matrons whose grace and accomplishments adorn the 
society of Austin. 




Jnlm W: Harris 



CHAPTER YIII. 



THE STATE BAR — EMINENT LIVING LAWYERS — JOHN W.HARRIS — J. B. 
8HEPARD — VOLNEY E. HOWARD — FRANK SEXTON — J. H. REAGAN — 
T. N. WAUL — W. P. BALLINGER — J. W. THROCKMORTON — JOHN HAN- 
COCK — JOHNSAYLES — N. G. SHELLY — R. B. HUBBARD — A. J. PEELER — 
WM. M. WALTON — JACOB WAELDER — A. W. TERRILL — GEORGE GOLD- 
THWAITE — N. W. BATTLE — M. D. HERRING — CHARLES STEWART — 
ALEXANDER WHITE — THOMAS HARRISON — J. M. ANDERSON — W. S. 
HERNDON. 



JOHN w. Harris. 



This distinguished lawyer was born and reared in Nelson 
County, Virginia, of which his parents were also natives. 
His ancestors for several generations were sturdy and inde- 
pendent farmers of the Old Dominion. The family came 
from England at an early day and settled on the James 
River, east of the Bhie Ridge, and for the most part within 
sight of the mountains. Like all of the old Eng-lish fami- 

CD O 

lies of Virginia, the Harrisons were proud of their origin, 
and devoted to the interest of the mother country until its 
oppressive measures kindled the fires of liberty upon their 
altars; and when the war for independence broke out they 
furnished many a valiant soldier to the Continental army. 
The subject of this sketch was placed at an earl}'' age in 
a country school Avhich possessed few facilities for the pro- 
motion of either progress or ambition, and without even 
the incentive of rivalry his advancement was slow. But 
as he approached the years of manhood he began to reah'ze 
the deficiency of his education, and reflecting with regret 
upon what he conceived to be due largely to his remissness 
and want of application, he determined, if possible, to 

(3C,7) 



368 BENCH AND BAR OF TEXAS. 

retrieve his misspent time. But how to accomplish this in 
the most speedy and effectual manner, and what course 
of life he should mark out for himself, were questions 
necessary to be decided at once. He had been reared on a 
farm, in the midst of a community of farmers, but his 
taste and experience taught him that this calling would not 
satisfy his newly awakened ambition and aspirations, and 
he determined to prepare himself for the study and practice 
of law. 

Armed with this resolution, which was but intensified 
and strengthened by the difficulties that beset his wav, he 
entered with vigor and zeal upon the chosen path of his 
destiny. The first step necessary to the most happv 
accomplishment of his design, was to acquire a collegiate 
education. But how to do this was a question of more 
serious import than any which had yet presented itself. 
His father's family was large, and the income of his farm 
was small. He could render him no material a^^sistance. 
But it is the characteristic of genius, however trammeled 
by difficulty, to break forth from the gyves of untoward 
circumstance, and, spreading the Avings of resolution, soar 
away triumphantly to the sunny fields of success. Young 
Harris determined to rely upon his own resources and edu- 
cate himself. His mother had given him a small body 
of land. This he made available to some extent, and at 
once put his plans in operation. In the fall of 1830 he 
entered Washington College (now Washington and Lee 
University) at Lexington, Virginia, in which he pursued 
his studies for two years with the utmost diligence :ind 
success. Having at the end of this time casually met 
some acquaintances who were attending the University 
of Virginia, he was advised by them to complete his 
education there ; and while the change, in consequence 
of the increased expense which it entailed, was more com- 
patible with his ambition than with his means, he was so 
much impressed with the superior advantages which the 
University afforded that he again bade defiance to fate, 
and in September, 1832, entered that celebrated institu- 
tion, in which, for five years, he prosecuted his studies 



JOHN W. HARRIS. 369 

with close and vigorous application. During this time he 
graduated in six departments of the University, including 
that of law, in which he attained distinguished proficiency. 

Soon after leaving the University he obtained license to 
practice in the courts of his native State ; but the viginti 
annorum lucuhrationes, which custom at that time required 
of a young man at the bar of Virginia, however competent 
he might be, before he could expect to be entrusted with 
important cases, caused many talented young lawyers to 
seek more propitious and less ceremonious fields. This 
conventional and arbitrary restraint was particularly repug- 
nant to the ardent spirit and impulsive vigor of Mr. Harris, 
and in the fall of 1837, within a few months after leaving the 
University, he immigrated to Texas and located in Brazoria 
County, near the mouth of the Brazos River, where, in 
January, 1838, he began the practice of his profession. 

This county was at that time, perhaps, the most populous 
and wealthy in the Republic, and offered a most promising 
field to the legal profession. Titles to real estate were often 
conflicting and uncertain, and the courts were thronged 
with adverse claimants seeking the adjustment of their 
rights. The' professional services of Mr. Harris were 
brought into immediate demand. His energy and talent 
engaged the attention and confidence of clients, and he 
soon found himself immersed in the duties of an extensive 
practice. 

Soon after he had settled in Brazoria he became a mem- 
ber of the law firm of Wharton &, Pease, and after the 
death of Colonel Wharton, which occurred in 1839, the firm 
of Harris & Pease became one of the most noted in the 
Republic, afterwards one of the most distinguished in the 
State, and continued until Mr. Pease was elected Governor 
of Texas in 1853. AVhen Mr. Harris came to the bar of 
the Republic it contained but four judicial districts, which 
extended over the vast expanse of its inhabited territory, 
and it was arranged between him and Mr. Pease that the 
latter should remain permanently in Brazoria while he 
should attend the courts of the six counties composing the 
district, and they soon found themselves employed in most 

24 



370 BENCH AND BAR OF TEXAS. 

of the important cases that came before the various courts 
of the district. They began their practice in the Supreme 
Court in 1840, when it was first organized. In 1839 Mr. 
Harris was chosen to represent the county of Brazoria in 
the first Legislature that convened at Austin, which had re- 
cently been selected as the capital of the Republic. During 
the canvass he endeavored to impress upon the people the 
propriety of abolishing the civil or Mexican law then in 
force, which was written in a language unintelligible to a 
majority of the citizens, and contained in books, for the 
most part, beyond their reach, and urged the adoption of 
the common law as the law of the land. They seemed to 
be indifferent, however, as to which system should prevail, 
and elected him untrammeled by any positive public ex- 
pression in regard to the measure. But he made it the 
chief object of his legislative mission. Although there 
were several other eminent lawyers in the House of Repre- 
sentatives, he was appointed by Hon. David S. Kaufman, 
then Speaker, as chairman of the Judiciary Committee of 
that body. In due time he introduced a bill to repeal the 
Mexican laws and to adopt the common law, and procured 
the recommendation of its passage by the Judiciary Com- 
mittee, it being opposed by only two members, who made, 
however, no adverse minority report. Considerable oppo- 
sition to the bill was soon manifested among the lawyers of 
the House, based chiefly upon the ground that the common 
law was not sufficiently liberal in its provisions regarding 
the rights of married women. This opposition was dis- 
trusted by General Houston, who gave his support to the 
measure, and its adoption was then assured. But to obvi- 
ate all grounds of objection, Mr. Harris added the feature 
regulating marital rights, and the bill was passed. This 
feature was incorporated five years later in the first Consti- 
tution of the State, and was pronounced to be a grand 
discovery of the age. Similar provisions have since been 
adopted by many of the States of the Union. 

It next became necessary that general statutes should be 
enacted in modification and aid of the common law to make 
it conform to the state of society and to the government 



JOHN W. HARRIS. 371 

and polity of the Republic, as had been done both in 
England and in the States. In view of this Mr. Harris had 
procured a copy of the General Statutes of Virginia, which 
had been originally enacted in England and adopted in Vir- 
ginia during the period of the American Revolution. 
These had been ably construed by the courts and their 
meaning and import well ascertained and settled, and Mr. 
Harris caused exact copies of them to be made, which he 
introduced as bills in the House of Representatives, and 
they were generally passed without amendment. But in 
civil cases the common-law system of pleading was rejected, 
and the proceeding by petition and answer was retained. 
The distinction between law and equity was discarded, and 
the courts were empowered to administer both without sep- 
arate dockets, and with the same form of proceedings, and 
this was found to be a decided improvement upon the old 
system, which maintained separate courts of law and 
chancery, as already described in a preceding chapter. 

In 1846 Mr. Harris was appointed Attorney-General of 
the new State by J. Pinckney Henderson, the first Governor 
of Texas after its admission into the Union. This appoint- 
ment was made without the least solicitation on his part, or 
of any of his friends, but, notwithstanding the inadequate 
salary, he accepted the position. He discharged the duties 
of this office with signal ability, and gave such general sat- 
isfaction that Governor Wood, the successor of Governor 
Henderson, reappointed him to the position, declaring, in 
answer to an urgent application for the office by one of his 
strongest supporters, that the interests of the State required 
the services of Mr. Harris. 

He was married in 1852 to Mrs. Annie P. Dallam, of 
Matagorda, Texas, daughter of Hon. S. Rhodes Fisher and 
Mrs. Ann P. Fisher, formerly a Miss Pleasants. They were 
both reared in Philadelphia, and emigrated to Matagorda at 
the early period of 1832. This talented and noble lady 
has adorned his home with the most admirable graces and 
accomplishments of her sex. 

In 1854 Gov. Pease appointed him in conjunction with 
James Willie and O. H. Hartley, to revise the laws of the 



372 BENCH AND BAR OF TEXAS. 

State. The penal code and code of criminal procedure 
were prepared by Mr. Willie, to the provisions of wliich 
Mr. Harris gave his assent without any material alteration 
of their features. The task of preparing a code of civil 
procedure was assigned to Mr. Hartley, and that of revising 
the statutes to Mr. Harris. They performed their duties, 
but the Legislature seemed to be satisfied with the practice 
as it existed and with the general statutes previous!}' en- 
acted, and the reports of Messrs. Harris and Hartley never 
received legislative action. 

Mr. Harris has always been a Democrat of the purest 
school. Educated amid scenes impressed with the very 
genius of Mr. Jefferson, and under instructors whose sen- 
timents were moulded by his association and influence, he 
drew his political inspirations from the very atmosphere in 
which the great statesman lived and moved, and imbibed his 
principles from the fountains which he struck from the 
rock of human liberty. The Civil War he deplored as un- 
necessary. He was devoted to the Union established by 
our fathers, and felt all the indignation of a true Southerner 
when he saw it fall under the control of a party avowedly 
inimical to the great principles upon which it was founded; 
and while he was not in favor of secession as the proper 
mode of redress, he acce[)ted it as a fixed and accomplished 
alternative, and gave his support to the Confederate 
cause. 

When the storm of revolution had passed away and the 
courts were reopened, he resumed the pi'actice of his pro- 
fession in copartnership with Marcus F. Mott, Esq., and 
subsequently associated with Branch T. Masterson, Esq.^ 
but his private fortune was now large and he confined his 
practice chiefly to important cases in the higher courts. 

In 1873 he was elected* to the House of Eepresentatives 
of the Fourteenth Legislature from the counties of Galves- 
ton, Brazoria and Matagorda. One of the most important 
questions that came before this body was a proposition to 
amend the Constitution of 1869, which had been framed 
under the auspices of military rule by persons inimical to 
the views and sentiments of the people, and largely by per- 



JOHN W. HARRIS 373 

sons who had no permanent interest in the State, and which 
had been adopted by the people under the constraint of a 
still more distasteful alternative. They had either to accept 
it or remain indefinitely under the galling 3^oke of military 
rule. The Fourteenth Legislature, being largely Demo- 
cratic, was desirous of annulling a Constitution which had 
been thus forced upon the people and of affording them an 
opportunity of adopting one of their own choice. 

The Constitution of 1869 permitted amendments to be 
made by a joint resolution of the Legislature proposing the 
amending features and their submission to the vote of the 
people. Under this provision, Mr. Harris, who was a mem- 
ber of the Committee of the House upon Constitutional 
Amendments, conceived the idea of readopting in this man- 
ner the Constitution of 1845, which had given general sat- 
isfaction, which had been thoroughly construed by the 
courts, and which Mr. Webster had declared to be the best 
that had ever been Avritten. Taking this Constitution as a 
basis, and changing its features with a sparing hand, he 
caused it to be carefully printed, and then submitted it to 
each House. Its passage was recommended by a committee 
of the House, and afterwards by a joint committee of the 
two Houses; but a strong feeling had in the meantime arose 
in favor of calling a constitutional convention, which finally 
prevailed, and the convention of 1875 convened and framed 
the present Constitution of the State. This Constitution 
was in some respects unfortunate. It has never given sat- 
isfaction, and under its provisions amendments seem almost 
impossible. 

The most important cases in which Mr. Harris has been 
engaged were those of Hosmer v. De Young, 1 Texas, 754, 
and League v. De Young & Brown, 2 Texas, 477 ; and as 
the questions involved in these cases were important in their 
bearing upon the origin and validity of a large number of 
land titles in Texas, the circumstances of the latter case 
and the points raised by the respective counsel, taken from 
the brief of Mr. Harris, are given in full. 

The laws of the Republic of Texas gave to each head of 
a family, who was a citizen at the date of the declaration 



374 BENCH AND BAR OF TEXAS. 

of independence, one league and labor of land, and boards 
of land commissioners, referred to in a former chapter, 
were elected by Congress for each county, whose duty was 
to hear the evidence of applicants and to grant certificates 
to them for such quantities of land as they were respectively 
entitled to receive under the provisions of the law. But it 
soon became apparent that some of those boards had cor- 
ruptly issued certificates to persons who were not entitled 
to them, and to fictitious persons, for many millions of acres 
of the public lands. 

Transfers of these certificates were proven, or purported 
to be proven or acknowledged before notaries public, and 
were dul}^ certified for registration. The holders of these 
fraudulent certificates located them, and required the sur- 
veyors to survey the lands on which they were located. 

President Lamar, foreseeing that the vast public lands of 
the Eepublic would soon be appropriated by these fraudulent 
certificates unless he should interpose his power to prevent it, 
issued his proclamation prohibiting the granting of patents 
upon all land certificates until Congress could meet and 
pass such laws as should be found necessary for the pro- 
tection of the public domain. 

When Congress met, it passed the " Act to detect fraud- 
ulent land certificates, and to provide for issuing patents to 
legal claimants." 

Under this act three land commissioners were elected 
for each county in the Republic, who constituted the boards 
of land commissioners of their respective counties. 

Besides these. Congress elected three commissioners for 
the district east of the Trinity River, and a like number 
for the district west of that river (commonly called boards 
of traveling commissioners), whose duty it was to go to 
each county in their respective districts, and in connection 
with the county commissioners, to investigate the proceed- 
ings of the prior or first boards, and ascertain what certifi- 
cates had been properly issued. 

Such as they found to be legal and genuine, they were to 
report to the commissioner of the land oflice, so that patents 
might be issued upon them. 



JOHN W. HARRIS. 375 

The law prohibited under heavy penalties the surveying, 
or patenting of lands upon any certificate not thus recom- 
mended. 

It also provided that the owner of any unrecom mended 
certificate might sue in the District Court of the county in 
which it was issued, to establish its validity. 

Hosner and League, each holding a certificate which the 
new boards of commissioners had failed to recommend as 
genuine, or legal claims, and which had not been established 
by suit in the District Courts, respectively made applica- 
tions to the surveyors for the location and survey of their 
certificates. This, under the law, the surveyor refused to 
do. Each then applied to the District Court for a man- 
damus to compel the surveyors to make the surveys. These 
applications being refused, the holders of the certificates 
applied to the Supreme Court of the State, and the cases 
were there argued for the appellees by Mr. Harris, as Attor- 
ney-General, and the judgments of the District Court were 
affirmed. 

Thomas M. League, took his case by a writ of error to 
the Supreme Court of the United States, before which it 
was ably argued by George Wood, Esq., of New York, for 
the plaintiff, and by Mr. Harris, for the defendant, w4io 
was employed by the Governor as the only attorney to 
represent the interest of the State. 

In this case the counsel for the plaintiff in error con- 
tended that the Republic of Texas w^as under an obligation 
amounting to a contract, to make grants of lands to claim- 
ants who came before the first board of commissioners 
and made the proof prescribed by the Act of the Republic 
of Texas of 1837. 

2d. That the grant of the certificate in question by the 
first board — a tribunal of competent authority, was in 
effect a judicial decision which was final, and, whether fair, 
or fraudulent, the validity of the claim could never be suc- 
cessfully impeached, nor could it ever be inquired into ex- 
cept upon appeal, or by writ of error, for which the law had 
made no provision. 

3d. That the certificate constituted a perfect right to the 



376 BENCH AND BAR OF TEXAS. 

quantity of land awarded, and all legislation of the Republic 
of Texas appointing new tribunals to examine into the 
genuineness and legality of such claims, or to limit the time 
within which the holder or assio^nee of such certificates miaht 
demand a survey and patent, was void, because it impaired 
the obligations of a contract, and that the eleventh section 
of the Constitution of the State of Texas declaring all cer- 
tificates for head-right claims issued to fictitious persons, or 
which were forged, were null and void from the beginning, 
and that the act providing that the District Courts should be 
opened till the 1st day of July, 1847, for the establishment 
of such unrecommended certificates, was also null and void, 
as it impaired the obligation of contracts. 

The points made by Mr. Harris, the counsel for the 
defendant in error, were: — 

1. That the laws of Texas, enacted while she was a 
Republic, could not be regarded as inhibited by that pro- 
vision of the Constitution of the United States which says 
" that no State shall pass any law impairing the»obligation of 
contracts." Nor could the eleventh article of the Consti- 
tution of the State be so regarded, for this was also adopted 
during the existence of the Hepublic, and it formed a part 
of the treaty between the two governments for the admission 
of Texas as one of the States of the Union. 

It may be said that this article was offered by Texas as 
an indispensable condition of the contract or treat}'' for 
annexation, and was accepted by Congress, which is not 
prohibited from enacting laws or making treaties impairing 
the obligations of contracts. 

2. That there was no obligation on the part of the Repub- 
lic to issue the certificate in question; that the granting of 
the certificates was based upon no consideration, which is 
an indispensable requisite of every legal and valid contract ; 
and that the laws of the Republic, and the eleventh article of 
the Constitution complained of were remedial laws, which 
could be altered, or even repealed, by the power that made 
them ; and that the plaintiff in error had certainly no cause 
of complaint against the eleventh article of the Constitution, 
since that revived in his favor a remedy which he had lost 



JOHN W. HARRIS. 377 

by limitation in iailing to institute suit before the 1st clay 
of January, 1844, and since he had also lost this constitu- 
tional remedy by failing and refusing to accept its pro- 
visions. 

3. That the Congress of the Republic had full power to 
pass laws creating new boards of commissioners, or other 
tribunals to revise the acts of the first boards, granting 
fraudulent certificates, and to reverse their decisions ; that 
had these certificates been fraudulently granted by the 
highest courts of the Republic the legislative power could 
have created new tribunals to revise and reverse their fraud- 
ulent judgments. 

4. That this was a suit against the State without its 
consent. 

5. That the plaintiff, by his own laches, had lost his right 
to sue in the District Court for the establishment of his 
claims, and that after all right of action had been barred he 
could not make application to the District Court lor a man- 
damus to compel the surveyor to survey the land. 

6. That if while Texas remained an independent Republic 
her Congress had passed laws annulling all these certificates, 
such would have been the effect of these laws. 

It will be seen by the decision in League v. De Young et 
al., 11 Howard, 200, that the Supreme Court of the 
United States sustained these several positions taken by 
Mr. Harris, the counsel for the defendant in error. 

This case was avowedly taken to the Supreme Court of 
the United States as a test case, with the hope of obtainino- 
a decision to the effect that the statutes complained of and 
the eleventh article of the Constitution were repugnant to 
the Constitution of the United States, and consequently null 
and void. 

Had such been the decision it is easy to see how disastrous 
would have been the consequences. The court in its opin- 
ion says: "Immense numbers of these certificates were 
soon put in circulation, either forged or fraudulently ob- 
tained, which, if confirmed by surveys and patents, would 
soon have absorbed all the vacant land of the Republic." 

Mr. Harris was employed in 1872 by Gov. Davis to assist 



378 BKNCH AND BAR OF TEXAS. 

Hon. William Alexander, then the attorney-general of Texas, 
in the defense of a suit which had been instituted by the 
International Railroad Company v. A. Bledsoe, controller 
of Texas. 

The object of the suit was to compel the controller to 
countersign and register claims to a large number of the 
bonds of the State, claimed by the company under the act 
of the Twelfth Legislature, passed August 5, 1870. 

This was entitled "An act to incorporate the Interna- 
tional Eailroad Company, and to provide for the aid of the 
State in constructing the same." 

The aid provided was the donation of the bonds of the 
State to the company of ten thousand dollars per mile, the 
road to be constructed from the northeast to the southwest 
boundary of the State, a distance of six hundred miles. 
These bore interest at the rate of eight per cent, payable 
semi-annually in the city of New York. 

The bonds had been signed by the governor and treasurer, 
and were required by the provisions of the charter to be 
countersigned and registered by the controller. This the 
controller refused to do. The company after but little de- 
lay made application to the District Court of Travis County 
for a mandamus to compel the controller to countersign 
and register these bonds. 

The defendant appeared and demurred, generally and 
specially, to the petition, and among other special causes 
assigned the following: — 

1. That it was, in effect, a suit against the State. 

2. That the controller could not be compelled to exer- 
cise his official discretion in any particular way. 

The defendant further answered that the passage of the 
act of incorporation was procured by means of fraud, 
bribery and corruption, and was therefore null and void. 

In the argument before the Supreme Court the points 
mainly relied upon by Hon. George Clark, the attorney- 
general, and Mr. Harris, the counsel for Bledsoe, 
were: — 

1. That the duty imposed by the act of incorporation re- 
quired on the part of the controller an exercise of discretion 



JOHN W. HARRIS. 379 

or judgment, and that a mandamus would not lie to control 
his discretion. 

2d. That under the Constitution, the court had no power 
to compel an officer of the executive department, nor any 
member of the body of magistracy of said department, 
whose powers are defined by the Constitution, to perform 
an official duty. 

The duties of the Governor, of the Treasurer and of the 
Controller being defined by the Constitution, it was con- 
tended in argument by the counsel for the Controller, that 
each of these was supreme in his own department. 

"If this position be regarded as untenable," say the 
counsel, "then, let us suppose that a peremptory manda- 
mus had been awarded against the Controller, which he 
refused to obey. What then would be the remedy against 
him to enforce the judgment of the court? It must have 
been to attach the Controller for a contempt of court, and 
to imprison him till he complied with its order. 

" Let us further suppose that the State Treasurer had re- 
fused to sign the bonds, which he was required to do by the 
charter of the company, and had also refused to obey a 
mandamus of the court to compel him to sign them, then, 
why should not he, like the Controller, be attached and 
imprisoned for contempt of court? 

" Let us further suppose that the Governor of the State 
had refused to sign them, and had also refused to obey a 
mandamus requiring him to subscribe his name as Governor 
to these bonds — would he not, for contempt of court, 
have been arrested and sent to jail with the Treasurer and 
Controller, who were already there? 

" We must suppose, that if such were the law, the Gov- 
ernor, who was the chief executive officer of the State, 
whose main duty it was to see that the laws were faithfully 
executed, would, as a good law-abiding citizen, have gone 
meekly to jail. 

" Let us also suppose that these three high officials, after 
trying for a time the gloomy walls of a prison, should upon 
consultation have determined that it was better to execute 
the bonds, and thus preserve at least their own freedom — 



380 BENCH AND BAR OF TEXAS. 

and they had executed them accordingly. Would this have 
ended the trouble? No ! for the Leo;islature might still re- 
fuse to make an appropriation to pay the bonds. What 
then must be done? Would the judge of the District 
Court of Travis County have awarded a mandamus to the 
Legislature to compel that body to make an appropriation 
adequate to meet the semi-annual interest and the annual 
sinking fund? 

" In case of refusal, would he have sent the members of the 
Senate, and those of the House of Representatives, con- 
stituting the officers of the legislative department of the 
government, to the Austin jail, to which he had recently 
consigned the Governor, Treasurer and Controller of the 
Executive Department? 

*' Would not this have amounted to a combination of the 
powers of the legislative, the executive and the judicial 
departments in one man — the judge of the District Court 
of Travis County? And this Mr. Madison, the great ex- 
pounder of constitutional law, said was the very definition 
of tyranny. 

" The position becomes absurd, when it is borne in mind 
that the members of the executive department and those 
of the Legislature, are elected by the people, while the 
judge of the District Court of Travis County, awarding the 
mandamus, obtained his office by the appointment of E. J. 
Davis, at that time the Governor of Texas." 

In this connection it may be remarked that this district 
judge belonged to that numerous class of officers, then com- 
monly denominated carpet baggers. How humiliating to 
the Governor I How galling to the people of Texas ! 
would have been the exercise of such poivers, hy such an 
officer! ! 

The o;reat success which Mr. Harris has attained in the 
practice of law and in all the affairs of life may be largely 
attributed to his preparatory course and early training. 
He made success the goal of his youthful ambition, and 
kept that one object constantly in view. He was taught at 
an early age to rely upon his own exertions, and he recog- 
nized that his attendance at the university was the great 



JOHN W. HARRIS. 381 

opportunity of his life. His limited means precluded him 
from those indulgences which too often dissipate the efforts 
of genius, and mar both the advantages and prospects of 
the student. His observations led him to note that those 
students who enjoyed the prospect of large inheritances, 
and who w^ere prodigal in their expenditures, made the 
slowest progress in their studies; and he learned to appre- 
ciate the advantages of the retraints which poverty places 
upon the diversions of pleasure. He thus acquired the 
habits of labor and self-denial without which the hio-hest 
ambition and the brightest genius will fail to reach the 
goal of success, especially in the exacting field of law. 

These qualities, thoroughly wrought into his character, he 
brought to bear upon the study and practice of his profes- 
sion. His first step is to thoroughly learn the facts of his 
cases and then to study the applicable law. When this is 
done and he is satisfied with the merits of his side of the 
controversy, he enlists every energy in the cause and iden- 
tifies himself with the interests of his clients. 

He is more of what may be called a text than a case law- 
yer. He relies more upon the principles of law than the 
power of precedent, which can not always comprehend the 
varied colors and features of fact, or gather them within 
the broad folds of parity or analogy. "While he is care- 
ful and painstaking in the written preparation of his cases, 
he is remarkably forcible and effective in oral argument, 
both before the court and the jury, and it has been the con- 
stant practice of his associates to concede to him the privi- 
lege of making the closing argument. 

His social characteristics are no less cultivated than his 
professional attributes. He is a man of courteous manners, 
refined ethics, and engaging address. Kind-hearted, gen- 
erous and keenly sensitive to the respect due to others and 
to himself, he blends the cultured uniformity of the well- 
bred Virginian with the more intensified qualities of the 
true Texan. 



382 BENCH AND BAR OF TEXAS. 



James E. Shepard. 



This venerable lawyer and excellent gentleman was born 
in Matthews County, Virginia, on the 24th of April, 1817. 
His father Seth Shepard, a native of Connecticut, was of 
Scotch descent, and was an eminent physician. His early 
advantages were liberal, and he was educated at Miami 
University, at Oxford, Ohio. He began the study of law 
in 1836 with W. R. Beaty at Greenupsburg, Kentucky, 
where he was residing with an uncle, and was graduated 
from the law department of the Ohio University at Cincin- 
nati. He was admitted to the bar at Flemingsburg, 
Kentucky, in the spring of 1838 and entered at once upon 
an encouraging practice. In November, 1846, he re- 
moved to Texas and located at Brenham, in Washington 
County, where he has since chiefly resided. He formed a 
copartnership at Brenham with his brother, C. B. Shepard, 
which continued many years, and until the latter retired 
from the practice. He then associated with him several 
young men, some of whom have attained distinction at 
the Texas bar. 

He was a member of the Legislature of Texas in 1850, 
and served a subsequent term prior to the war. In 1861 
he was a member of the convention which severed the rela- 
tions of Texas with the Union, and, being an ardent 
Southerner in his views and sentiments, he promptly en- 
listed in the service of the Confederacy, and was made 
lieutenant- colonel of the Sixteenth Regiment of Texas 
infantry. While still at the head of his regiment he was 
elected in 1864, without his knowledge, judge of the Third 
Judicial District, and accepted that position. 

He was a member of the reconstruction convention in 
1866, and was during that year re-elected, without opposi- 



JAMES E. SHEPARD. 383 

tion, to the district bench, but was removed in 1867 by the 
military power as an impediment to reconstruction. He 
was then appointed dean of the law faculty of Bayler Univer- 
sity and held that position for several years, and until the 
suspension of the law department of that institution, which 
was necessitated by the scanty attendance occasioned by 
the strinofency of the times in financial matters. 

In 1873 he removed to Austin and formed a copart- 
nership in the practice of law with J. G. Searcy, which 
continued about five years, after which he returned to 
his old home atBrenham, where he is still residing and prac- 
ticing his profession with a vigor and activity rarely found 
in one of his years. Judge Shepard is a man of great integ- 
rity, firmness and independence of character, and as a judge 
was able, upright and pure, readily comprehensive of every 
point upon which a proposition hinged, liberal in his in- 
tei*pretation of law for the advancement of justice, and 
watched the poise and inclinations of its scales with a 
conscientious eye. 

He had in early life acquired a thorough knowledge of 
the rudiments and fundamental principles of law, and wove 
them into the elements of his own judgment and percep- 
tion. As a hiwyer he is full worthy of the distinction he 
has enjoyed and of the success with which his efforts have 
been crowned. His mind is active, vigorous and steady in 
its grasp of the substance of a proposition, and he never 
loses sight of the points upon which the merits of a question 
hinge. 

Another source of his professional strength is his capacity 
for captivating the minds of the jury ; his methodical ar- 
rangement of facts, his forcible illustrations, earnestness of 
manner, boldness of assault, and complacent, though 
scathing rejoinder and repartee gain for him both the 
attention and the favor of the jury. He knows how to 
avail himself of ever}^ consideration which tends to awaken 
the feelings of sympathy ; not, however, by specious 
declamation or the cunning arts of suasion, but by an 
appeal to the nobler passions of men, their sense of justice, 
their sentiments of moral rectitude, and to the just and full 



384 BENCH AND BAR OF TEXAS, 

comprehension which he quickens in the minds of his hear- 
ers bj' his accurate and lucid interpretation and sound 
judgment. Ex-Governor Roberts lately told his law class 
in the University of Texas, that Judge Shepard was one of 
the few lawyers in the State whose statement of a case was 
an argument in itself, nnd it may be said of him that he is 
one of the few whose overflowing humor and overweening 
propensity for ludicrous anecdote and badinage never im- 
pair the most implicit faith in his sincerity, nor weaken 
the force of his most subtle and gravest arguments. It was 
not with him as Dr. Johnson said it was with Shakespeare, an 
irresistible fondness for a mere quibble which allured him 
from the dignity and profundity of his disquisitions, nor 
" the Cleopatra for which he lost the world and was content 
to lose it;" but it is the aroma which springs from the 
blossoms of his genius and the flowers of his philanthropy ; 
and blending the force of his wit with the power of his 
wisdom he is at all times a formidable adversar3^ He is 
also one of the few lawyers Avho have maintained a high 
position at the bar and upon the bench with a divided alle- 
giance to their profession. In addition to his successful 
practice he has been engaged in mill enterprises and irri- 
gation schemes — rivals which the Jealousy of law would 
not have tolerated in an ordinary mind. 

Some of the most important cases argued by Judge Shep- 
ard, and which are illustrative of his professional qualities, 
are Hall v. McCormick, 7 Texas, 269, which involved the 
question of the necessity of presenting to an administrator 
the claim of a judgment which has lost its lien; and Atkin- 
son V. The State, 20 Texas, 522, in which he discussed the 
nature and application of the ingredients which distinguish 
manslaughter from murder. 

In private and social life Judge Shepard is noted for his 
kindness and congeniality. His manners are courteous and 
suave, and indicate a breast full of the noblest impulses. 
He was married in 1839 to Miss Martha J. Andrews, of 
Flemingsburg, Kentucky, a lady in Avhose heart every noble 
sentiment finds a reciprocity, and with whom he has 
enjoj^ed a long and felicitous union. 



VOLNEY E. HOWARD. 385 



VOLNEY E. HOWARD. 



The subject of this sketch was a native of the State of 
Maine, where he received a finished education and was 
thoroughly prepared for the profession of law. He emi- 
grated to Mississippi about the year 1830, and located at 
Jackson, where he entered upon his profession, and rose so 
rapidly in the confidence and esteem of the bar and people 
that in 1837 he was chosen reporter of the decisions of the 
High Court of Errors and Appeals, 

His reports are distinguished for lucid and systematic 
arrangement, and his captions and syllabuses are compre- 
hensive, clear and exact. He also took a prominent part 
in the politics of the day, and was for several years editor 
of The Mississippiaiii a newspaper published at the capital 
and the leading Democratic organ of the State. He was a 
vigorous and caustic writer, and attacked with scathing re- 
buke and sarcasm every measure which he deemed false to 
the interest and welfare of the people, while he, with in- 
veterate alacrity and eloquence advocated the true princi- 
ples of his party. His paper wielded a great influence 
throughout the State, and the force and ability with which 
he inculcated his views impressed them deeply upon both 
public policy and private enterprise. 

Mr. Howard is a man of extensive culture and a lawyer 
of great ability, while the eminent traits which adorn his 
character have rendered him at all times popular with the 
people and have given him everywhere a high profes- 
sional, political and social standing. Like Mr. Prentiss, 
he came to Mississippi without means and without friends, 
and with the suspicion and prejudice which at that time ex- 
isted in the minds of the Southern people against all natives 
of New England staring him in the face, and which nothing 

25 



386 BENCH AND BAR OF TEXAS. 

but the most amiable character, the most upright conduct 
and eminent merit could have so soon and so completely 
dispelled as to admit him to the full confidence and to the 
warmest support and patronage of the people. 

In the year 1845, while in the meridian of his profes- 
sional success and popularity in Mississippi, Mr. Howard 
was allured by the spacious fields of the young republic of 
the West, and removed to San Antonio, Texas. Here his 
abilities were soon called into the public service, and he 
was chosen a member of the annexation convention, and 
took an active part in framing the Constitution of the 
State. He was strenuously opposed to the introduction of 
any novel and experimental features in the organic law, or 
any which savored of class legislation. He opposed the 
clause excluding ministers of the gospel from political 
office, and likewise any extension of the liberty or license 
of the press. In his opposition to the latter measure he 
said: — 

"It is easy to indulge in declamation upon liberty, but 
to understand the principles of liberty, and to know the 
measures necessary to its security, is a somewhat different 
matter. Sir, what is the liberty of the press? We have 
heard a great deal said about it here, but no one has at- 
tempted to define it. I will not give you my own crude 
definition, or the speculation of my own views, but those 
of the wisest sages, of the most enlightened jurists and 
statesmen. The liberty of the press, then, is defined to be 
the right to publish our sentiments and opinions, unre- 
strictedly, being afterwards responsible for the abuse of 
that right. That is the liberty of the press, and there is 
not one jurist or statesman who has defined the liberty of 
the press as the right to publish without responsibility. It 
would be extraordinary. One of the principal objects of 
government is to protect the liberty of the person, and 
property. But would the government be perfect, would it 
answer the ends for which it is created, if it did not protect 
reputation and character also? Are we to say that repu- 
tation is less dear than property? To a high-toned man it 
is dearer than life itself. 



VOLNEY E. HOWARD. 387 

*' We have heard a good deal of declamation about 
the antiquated doctrines of the common law, and the 
tyranny of English decisions in relation to the press. It 
comes with a very poor grace from Americans. The liberty 
of the press, like almost all the principles of liberty, is the 
growth of English culture. It first took root in English 
soil. When printing was first discovered, it was considered 
entirely an affair of state, and its regulation was confined 
to the crown. This jurisdiction in England was in process 
of time placed in the Star Chamber. There it remained 
until the Revolution and the Long Parliament of 1(541, in 
the time of Charles the First, where it was assumed by 
Parliament itself, which exercised it until the restoration of 
Charles the Second, soon after which the censorship was 
revived by an act of Parliament, which continued in force 
until the year 1694. But in the meantime the English 
mind became aroused upon the subject, and the act was 
allowed to expire by its own limitation. Upon that nega- 
tive basis the freedom of the press rested, and thus it 
remained, until the passage of the act which gave juries 
the right to determine the fact and the law as in other cases. 
The rights of the press were freely discussed and defined 
upon the trial of the publisher of Junius, and more recently 
in the speeches of Erskine, some of which, for variety and 
purity of principles, for profound thinking and masterly 
eloquence, are unsurpassed by anything of the kind since 
the days of Cicero. And what were the principles estab- 
lished by him? For what principles did Junius contend? 
That ever}'^ man in the discussion of public affairs had the 
right to publish what he should think proper, being after- 
wards responsible for the abuse of the privilege. Thus 
stood the right prior to the American revolution. Now, 
what is our own history upon the subject? When the 
American Union was framed, the English principles upon 
the subject of libel were the principles of this country. In 
1798 that measure occurred which cut so large a figure 
under the administration of John Adams, of punishing 
editors for their comments upon the conduct of the Presi- 
dent, members of Congress, and officers of the government. 



388 BENCH AND BAR OF TEXAS. 

And here let me remark that it was not so much the exer- 
cise of the power, as the odious manner of its exercise, 
which produced excitement. Jefferson opposed it, and 
rallied around him what was then called the Democratic 
party. Now, for what principle did Jefferson contend? 
For the right to publish whatever a man pleases, without 
any check? Did he say that the liberty of the press ex- 
cluded the idea of responsibility? I have never seen from 
the pen of Jefferson the expression of any such senti- 
ment. There has never been an intimation in the whole 
course of the history of the subject that a man should 
have the right to publish what he pleases without being 
afterwards responsible. It has indeed been constantly 
contended that no censorship should be exercised over 
a man as to what he should publish ; but if he should 
publish what is improper or injurious, it has been unani- 
mously admitted that he should be held responsible. Thus 
for the principles of the English law. American principles 
go a step further, and Mi*. Jefferson, when he went into power, 
contended that ' in all prosecutions for the publication of 
papers investigating the official conduct of officers, or men 
in a public capacity, the truth thereof may be given in 
evidence.' 

." But with regard to private life a different principle has 
been maintained by every American statesman of any in- 
fluence. To that extent I will go. I would propose to 
amend by adding, after the word ' evidence,' the folio w- 
ino- : ' But in other cases the truth shall not avail as a 
defense, unless published from correct motives and for pur- 
poses of public good.' What is the only difference here? 
One party contends that in private affairs the truth should 
be published at all times, without regard to public good or 
inconvenience, and that if the truth is made out, it should 
be ample protection. Now I deny that there is any such 
principle known to the law. I maintain that it would be 
destructive of the liberty of the press itself; for liberty 
means restraint — the protection of the right and the re- 
straint of the wrong. Now, is it right, under all circum- 
stances, that the affairs of private life should be published 



VOLNEY E. HOWARD. 3^9 

to the world? * * * Is it right that innocence and 
misfortune should be needlessly held up to public scorn 
and ridicule, and their fortunes in life perhaps forever 
blasted by an impudent caterer for the love of slander in- 
herent in the human breast? I look upon such a person as 
an assassin in the dark, too vile to move in the face of day. 
Discuss public affairs as fully as you will; handle public 
men with what severity you choose ; subject them to the 
keenest scrutiny; but let the liberty stop there. If an in- 
dividual is guilty of a great outrage, it may be necessary 
and beneficial to the public to publish the facts ; but in such 
cases ample protection is afibrded. It is an old adage, and 
a true one, that ' the truth may not be spoken at all times ; ' 
there are many things that need not be told. I say, then, 
that the government which fails to protect character from 
unjust and unprovoked aspersion is as imperfect as one 
that fails to protect life. The one is as dear as the other, 
and ought as much to be placed under the protecting shadow 
of the law. By nothing we can do here, could we hope to 
prevent the licentiousness of the press to any great extent. 
But I am not willing, in the fundamental law of the land, 
to offer a reward for licentiousness. I would at least incul- 
cate a moral ; whether it can be practically enforced or not, 
is no business of ours. The danger to the people, and to 
the press itself, is from its license. There is no adequate 
remedy, but this is the only one in our power. It is not 
my purpose to declaim here about the glorious privileges of 
the press; God knows it has privileges enough. And many 
a man, while declaiming in the name of Democracy, has 
stabbed liberty to the heart. Who were louder in eulogiz- 
ing liberty than Robespierre and Marat ? yet who did more 
to sap its very foundation in Europe? 

" Let us understand the import of the principles which 
we are adopting. The article, as it stands in the report, 
leaves it to the Legislature to say whether or not it shall be 
competent to permit the truth to be given in evidence, in 
case of publications relating to private affairs. I propose 
to control the Legislature in that respect. I think some re- 
straint would be salutary." 



390 BENCH AND BAR OF TEXAS. 

Soon after the adjournment of the convention Mr. 
Howard was elected to the Senate of the State, and in 1849 
was chosen to represent the Western District of Texas in 
the United States Congress, in which he took an active part 
in the interest of the Missouri Compromise and other im- 
portant measures which were at that time agitating the 
waters of national politics. At the expiration of his Con- 
gressional term, in 1852, he was sent by the President of 
the United States to California as an agent to settle land 
claims and other matters, and has never returned to Texas ; 
but, having settled there, has acquired much additional re- 
putation in his profession. 



r. B. SEXTON. 391 



F. B. SEXTON. 



Franklin Barlow Sexton was born in New Harmony, 
Posey County, Indiana, on the 29th of April, 1828, His 
father was a native of Connecticut and was a descendant of 
one of the old families of that State. While in the tenth 
year of his age he removed with his father's family to San 
Augustine, Texas, where his father died in 1841 and left 
him in the sole care of his mother. She was a lady of deep 
and devoted piety and reared him in the strictest and most 
careful manner, and to her he owes all the inspirations of 
his youth and pei'haps the achievements of his after years. 
His educational advantages were good, and he g^uaduated at 
the Wesleyan College, San Augustine, Texas, in 1846. 
He afterwards served a short apprenticeship in a printing 
office, and then studied law in the office of J. Pinckney 
Henderson and O. M. Roberts. Havino- received a thorough 
legal training under the supervision of these distinguished 
gentlemen, who were at that time partners, he was admitted 
to the bar in 1848, and immediately began the practice of 
law at San Augustine, and soon acquired a professional 
reputation which grew to a high standard of eminence. 

The teachings of his mother, who was a Georgian, his 
education and associations, early imbued his mind with the 
warmest Southern sentiments and staunch Democratic 
principles, and he accepted the alternative of secession pre- 
sented by the " irrepressible conflict " with all the enthus- 
iasm of his nature. In 1861 he entered the Confederate 
service, and during the same year was elected to fill a 
vacancy in the Texas Senate, but did not return in time to 
take his seat. In 1862 he was elected to the Congress of 
the Confederate States, and was zealous in his support of 
all measures which promised to promote the Southern 



392 BENCH AND BAR OF TEXAS. 

cause and bring triumph to the Southern arms. He was 
ardent and unswerving in his devotion throughout the war 
to the principles which he cherished, and at its close, hold- 
ing fast to his honor and dignity, he promptly accepted the 
inevitable consequences of its result, and returned to the 
practice of the law at San Augustine where he again engaged 
in a large practice. In 1872 he removed his office to Mar- 
shall, where he has since continued to reside in the enjoy- 
ment of one of the first legal reputations in Eastern Texas. 

In 1876 he was chosen a delegate to the National Demo- 
cratic Convention which assembled at St. Louis and nomi- 
nated Mr. Tilden for the presidency. Since that time he 
has devoted himself exclusively to the practice of his pro- 
fession; yet, has cherished a lively interest in political 
events, and especially in those affecting the welfare of the 
South and of his State. 

Mr. Sexton is a man of gj-eat moral and personal integ- 
rity, and pursues the even tenor of a career adorned with 
ability and genius and arched over with the purest Christian 
virtues. He is a devout communicant of the Episcopal 
Church, and has been an active member of the Masonic 
fraternity since he was twenty-one years Of age, which has 
honored him with the highest official positions of the order. 
H^ has been grand master, grand high priest and grand 
commander of the Knights Templar. 

A biographer often finds the currents of character flow- 
ing from the inspiring fountains of a mother's affection, and 
their course and vigor shaped by the encouragement of a 
noble wife. The virtues of these have formed the noblest 
themes of both romance and reality. 

Xenophou, in his elegant memorabilia of Socrates, relates 
a beautiful allegory describing the choice of Hercules be- 
tween the superficial allurements of sensuality and the real 
charms of virtue. The youthful hero, having arrived at the 
age of discretion, sought the stillness of solitude for the 
purpose of refl.ecting and deciding upon his course of life, 
and while in a state of perplexity as to whether he should 
enter upon life by the way of virtue or the path of vice, 
he was approached and accosted by two women of remark- 



F. B. SEXTON. 393 

able stature and appearance. The countenance of one of 
these ladies glowed with benevolence and the modest smile 
of amiability. Her manners were dignified and gentle : 
every feature betokened the highest culture of decency and 
gentility. She wore no ornaments. Her native charms 
needed no artificiality to add to their serene splendor. She 
was adorned with neatness and elegance, and all her gar- 
ments were of the purest white. 

The other was not without beauty ; but, notwithstanding 
her rouged cheeks and carmined lips, her countenance had 
the appearance of being sallowed and bloated from luxurious 
excesses ; and while she affected the most eng-agiiis man- 
ners her demeanor was evidently studied and constrained, 
and every artifice was invoked to remedy her natural 
defects. Her fingers and ears and breast glittered with 
sparkling ornaments. She was exceedingly bold, and the 
blush of modesty was altogether a stranger to her cheeks. 
Her dress was of the most gorgeous colors, and she was 
ever on the alert to detect the least glance of admiration; 
indeed, she would often stop to admire her own shadow. 

With characteristic pertness she hastened in advance of 
the quiet, majestic step of her companion, and addressing 
Hercules with a bland but aff*ected smile, announced to him 
that she was aware of the character of his meditations, and 
if he would accept the offerings of her friendship she would 
conduct him along the most flowery paths of happiness and 
ease, where every delight should court his enjoyment, and 
not a thorn of pain or thistle of sorrow should ever pierce 
his feet. Free from the harsh and annoying concerns of 
life the pleasures of luxury should be his only employment. 
Upon this flattering and seductive announcement, Hercules 
demanded her name. "My friends," said she, " call me 
Happiness ; but my enemies brand me with the nick-name. 
Sensuality." 

By this time the other lady had arrived, and, accosting 
Hercules, said that she, too, had come to offer the consola- 
tion of her friendship in the matter about which he seemed 
to be disturbed ; that she was not a stranger to his eminent 
parentage, and had remarked the goodness and amiability 



394 BENCH AND BAR OF TEXAS. 

of his disposition from his early childhood, and in view of 
which she entertained the most lively hopes that if he would 
follow her lead he would achieve glory for himself and be 
an honor to his chaperon ; but that she did not intend to 
allure him by specious promises of pleasure, but would 
represent things as they existed in reality, and disclose to 
him the will of heaven concerning them. " Know then, 
young man," said she, "that the allwise rulers of the uni- 
verse have decreed that nothing great, nothing excellent can 
be achieved without care and labor: that no good, no hap- 
piness, can be attained on any other terms. If, therefore, 
you would obtain the favor of the gods, adore them. It' 
you desire the love ot your friends, be worthy of it. If 
you wish to be honored by your fellow-citizens, serve them. 
If you wish to enjoy the fruits of the earth, cultivate it. 
Thus alone, O Hercules, mayest those attain that felicity 
with which I am empowered to reward those who yield to 
my direction, and who not only enjoy the richest blessings 
of earth, but when the fatal hour arrives, my votaries sink 
not like others into inglorious oblivion, but live forever in 
the favor of the gods and the grateful remembrance of 
mankind." 

The lady in white beautifully represents the spirit of 
maternal influence — the virtuous inspirations of a noble 
mother or devoted wife, and as the life of Hercules evinced 
the wisdom of a choice which enabled him, under the 
sternest decrees of fate, to glorify the teachings of virtue, 
so the life of Judge Sexton verifies the power of those hal- 
lowed admonitions which he received from his pious and 
devoted mother. 

One of the most important cases argued by Judge Sexton 
in the Supreme Court is that of Snider v. The International 
and Great Northern Eailroad Company. The question in 
this case arose upon the interpretation of the act of the 29th 
of November, 1871, declaring that the withdrawal of a cer- 
tificate and field notes from the land office by the owner or 
his authority, " will render the location and survey null and 
void." In arguing the meaning of the statute, he said : — 

" Those words speak for themselves. True it is that the 



F. B. SEXTON. 395 

language of the article is ' the withdrawal of such certifi- 
cate,' and the words ' by the owner or his authority ' are 
not there. But what is the ordinary meaning of the word 
'withdrawal?' 'To take back,' 'to recall.' (Web- 
ster's Dictionary.) Who can take back or recall, except 
the one who originally deposited the thing to be taken back 
or recalled? The Legislature must be understood to have 
used words in their usual and ordinary signification. If 
some man, having no right to, or claim on a piece of prop- 
erty in the land office, or elsewhere, takes it out of the place 
where it has been deposited, that is not a withdrawal. It 
may be a theft ; it may be a trespass ; it certainly is not a 
withdrawal. And, for the quite conclusive reason that hav- 
ing never put it there, he could not withdraw it. The owner 
of the certificate could control it. Having placed it there, 
in the first instance, he could let it remain, or he could re- 
call it, or withdraw it and then, he became subject to the 
consequences of his own act. Article 7097 of Paschal's 
Digest provides, that where the field notes of surveys made 
by virtue of certificates referred to in the preceding section 
(Art. 7096) 'have been returned to the general land 
office, and the certificate by virtue of which the survey was 
made is not on file in the general land office, nor has been 
withdrawn for location of unlocated balance as is provided in 
the first section of this act, such certificate shall be returned 
to and filed in the general land office,' etc. Appellant's 
whole case consists in a literal construction of the words 
' and the certificate by virtue of which the survey was made 
is not on file in the general land office.' And, in order 
to give those words the effect contended for by appellant, 
all the balance of the act must be entirely stricken out, and 
they must be made eifectual, if they can be, by their own 
inherent force and energy. I do not think this court will 
undertake such an enterprise. What those words mean is 
rendered apparent by what immediately follows them, viz. : 
' nor has been withdrawn for location,' etc. The balance 
of the sentence and of the article (7097), in which these 
words occur, shows clearly that the legislative mind was still 
contemplating an act by the owner of the certificate (/.e. 



396 BENCH AND BAR OF TEXAS. 

a recalling by one who had placed the certificate in the land 
office and had the right and power to recall, or withdraw 
it), and was, for satisfactory reasons of public policy, pro- 
viding certain legal consequences to that act. The use of 
the word ' return ' in the same connection strengthens the 
view I am endeavoring to present. It is possible that a 
party who had illegally and improperly taken a piece of 
property from the owner thereof, or from the place where 
it was by law deposited, might return it. But such conduct 
is not usual and we can not suppose the Legislature was 
providing for such an unusual and improbable contingency. 
The Legislature was evidently contemplating a ' return ' 
by the party who had withdrawn the certificate and it was 
for him and his conduct that it was then providing. Article 
7098 uses the word ' withdrawn ' and ' withdrawal ' alto- 
gether when referring to field notes and surveys, 

" Not only is the meaning of the Legislature clear, as I 
think, by the words it has used, but if resort is had to con- 
struction it seems impossible to make the act, under con- 
sideration, mean what is contended for by appellant. And 
this, for the reason that the construction placed upon the 
act of 29th of November, 1871, by appellant renders it 
absurd and unjust. Is it reasonable or just that one man 
should suffer for the act of another which he did not know 
of and could not prevent? And is not that the direct and 
necessary result of the construction of the act in question 
which is insisted upon by appellant to be correct? It 
seems so to me. Appellant says the McNutt certificate 
and field notes were ' out of file ' — ' not on file ' — and 
therefore ' the location and survey thereunder were for- 
feited, and I (appellant) have located the land.' We ask 
who took them out? We did not. Appellant replies, 
' I do not know or care who took them out ; they are 
out, and I have taken your land.' Is this reason? Is 
this justice? Is it what the law means? Did the Legis- 
lature intend to produce a result which so shocks the moral 
sense and common intelligence of mankind? 

" Elementary authors, among the different rules for the 
construction of statutes, say that it is proper to consider 



F. B. SEXTON. 397 

♦ the old law, the mischief and the remedy.' Let us briefly 
apply these tests to the statute under discussion. It was a 
fact so notorious as to have become a matter of public 
legislative history, and therefore I am justified in referring 
to it, if, indeed, this court will not take judicial notice of 
it, that the owner of a certificate would locate it in one 
place, have a survey made under it, and return the field 
notes to the general land oflSce, then withdraw it (or, as 
was sometimes said, float it) and locate it in another 
place, have another survey made and again return the 
field notes, and so on, until, in some instances, three or 
four or perhaps more different surveys or tracts of land 
were held by the same certificate. The party making 
these different locations and surveys would hold them until 
an opportunity was afforded him to sell upon speculation 
to some one who had a certificate, when he would again 
float his and make another location, his original location 
and survey meanwhile remaining in the land oflSce, and 
when he had speculated as much as he desired, or was pru- 
dent, he would return his certificate and obtain a patent on 
his original field notes. Or perhaps the process would be 
reversed, and the party floating his certificate from place 
to place would procure certificates by purchase or other 
means not necessary to be specified, and apply them to the 
choice locations he had secured by floating his original cer- 
ticate. There was a well known phrase, borrowed from 
the nomenclature of stock raisers, often used in conversa- 
tion to describe the proceeding to which I have just re- 
ferred, but judicial propriety forbids that I should use it 
here, though it is very expressive. I doubt not your 
Honors have heard it and readily understand my allusion. 
This was doubtless the mischief which the Legislature was 
tryiug to prevent, and which the old law was not suffi- 
ciently specific to prevent. The remedy clearly was, to 
provide that the owners of certificates who had withdrawn 
them from the general land office for the purpose of 
speculating improperly upon the public domain, or upon 
the ignorance or necessities of others, should return them 
and procure patents upon their original locations. Is not 



398 BENCH AND BAR OF TEXAS. 

the conclusion irresistible that this is just what the Legis- 
lature was considering and what it intended to do, and did? 
The case of a certificate and field notes already in the 
general land office and never withdrawn by the owner, 
but simply on deposit and awaiting patent, was not thought 
of, much less in any way provided for or effected by the 
Legislature which passed the act of 29th of November, 
1871. 

" If it be said that the object of the Legislature was more 
or different than I have stated, in this, that it was to 
ascertain the quantity of unappropriated public domain, 
and to induce diligence upon the part of the owners of cer- 
tificates, still, I answer, the idea is clear and conspicuous 
that the act from the beginning to end contemplated and 
was framed with reference to withdrawal by the owner. It 
nowhere appears that it was intended by the Legislature to 
punish the owner of a certificate and survey for an act done 
by another. It has no word of reference to the man who 
has complied with the law ; to the man whose location and 
survey had been made, whose field notes and certificate had 
been returned and vvere on file in the land office. To him 
it said, by saying nothing, that you have done your duty — 
you have only to get your patent. But to the man who had 
'withdrawn' his certificate or field notes, it said, you 
must return it, or you will be held to have abandoned your 
location, and we will let another take it. 

" Says Professor Lieber, an author whose recent work on 
Political and Legal Hermeneutics can not fail to commend 
itself to those of the legal profession who read it, ' there 
can be no sound interpretation without good faith and com- 
mon sense.' (p. 109.) Again on the same page he says, 
' that which is probable, fair and customary, is preferable 
to the improbable, unfair and unusual.' In reference to 
construction, says the same author (p. 136), * no text im- 
posing obligations is understood to demand impossible 
things.' (Would it not be impossible for the owner of a 
certificate to return it to the land office when he had not 
withdrawn it therefrom, did not know of its absence and 
did not know where it was?) Again, on same page, ' the 



F. B. SEXTON. 399 

effects * which would result from one or the other con- 
struction may guide us in deciding which construction we 
ought to adopt.' In the preceding brief your Honors 
will find several references to this author and to Dwarris on 
Statutes, all of which are earnestly commended to the con- 
sideration of the court. The interpretation and construc- 
tion of this statute of 29th of November, 1871, is an 
important feature in this case, and this is my apology for 
occupying so much time with it. 

" I submit, further, that the construction of this statute, 
contended for by appellant, would deprive the defendants 
of their property, the land appropriated by the McNutt 
certificate, .survey and field notes, without due course of 
law. The owners of the McNutt certificate have complied 
with the law. Neither McNutt, or those holding under 
him, have done anything to forfeit his or their rights. Is 
a forfeiture of their estate to be declared by legislative 
enactment on account of the tort or malfeasance of another, 
or on account of the negligence or carelessness of a public 
officer (the commissioner of the general land office or 
his clerks), in permitting a paper to be lost in his office or 
taken therefrom, without any agency of theirs? Such a 
result was prohibited by the Constitution of Texas, in force 
when the act of 29th of November, 1871, was passed, and 
by every constitution Texas has ever had. Will this court 
give to an act of the Legislature a construction which must 
produce such a result? I think not." 

This view of the question was affirmed by the Supreme 
Court in Snider v. Methvin, 60 Texas, .487. 



400 BENCH AND BAli OF TEXAS. 



JOHN H. REAGAN. 



The distinguished subject of this memoir was born in 
Sevier County, Tennessee, on the 8th of October, 1818. 
His education was confined to the advantages afforded by 
the common schools and an academic course. He immigrated 
to the Republic of Texas in 1839, and settled east of the 
Brazos. His first occupation was that of a surveyor of 
lands, which he pursued until the year 1843. Soon after 
his arrival in Texas, in 1839, he was engaged in the battles 
which occurred that year with the Cherokee Indians, and 
was with General Torrant in his expedition to the Cross 
Timbers in 1843. While engaged in the occupation of a 
surveyor he studied law and, having obtained his license in 
1844, he began the practice of his profession at Old Fort 
Houston, now Palestine, where he still resides. 

In 1847 he was elected to the Legislature, and acquired 
reputation by his energetic advocacy of measures affecting 
the general interest of the State. In 1852 he was elected 
district judge and was re-elected to that office in 1856. 
In 1857 he was elected to the United States Congress from 
the Eastern District and was re-elected by a large majority 
in 1859. 

Judge Reagan, until 1861, had always been a Democrat 
of conservative views, but the triumph of sectionalism in 
the election of Mr. Lincoln upon a platform avowedly hos- 
tile to Southern interests caused him to advocate the seces- 
sion of Texas from the Union and the resumption of her 
sovereignty as an Independent Republic, and in January, 
1861, while still a member of Congress, he was elected a 
delegate to the State Convention at Austin. He immediately 
left Washington and took his seat in that body. By re- 
quest of the members he addressed the convention, and in 



JOHN H. REAGAN. 401 

an able and pathetic speech presented to it his views upon 
the great question which was then agitating the country and 
gave the reasons by which he was actuated in advising that 
Texas should resume her sovereignty. When the secession 
of the State was accomplished he was elected a deputy to 
the Provisional Congress of the Southern States, which was 
about to convene at Montgomery, and participated actively 
in framing the Constitution and organizing the Provisional 
Government of the Confederate States. 

Judge Reagan is a man of great tenacity of purpose and 
firmness of character, and his business capacity is equaled 
only by the soundness of judgment which directs it. He 
is a man of intense convictions and unswerving in the pur- 
suit of noble ends by noble means. Mr. Davis had ob- 
served these traits of his character while Judge Keao-an was 
a member of Congress, and when he entered upon the 
Presidency of the new Confederation he immediately 
selected him as a member of his Cabinet. As Postmaster- 
General of the Confederate States his services were univer- 
sally recognized as efficient in the highest degree. Upon 
him devolved the task of organizing and putting in motion 
the postal service of a new nationality containing millions 
of people, and to maintain it amid the march and counter- 
march of armies, the transportation of hundreds of thousands 
of troops, the shocks of battle, in the face of invading 
hosts, in the van of retreating armies, to re-establish cap- 
tured and desolate lines, and keep open communication 
with all parts of the Confederacy. How well and thor- 
oughly he accomplished this task belongs to the history of 
the world, and is known among all civilized men. 

He was faithful and true to the Confederacy. He had 
espoused its cause with all the ardor and sincerity of his 
nature, and when he accepted a place in the Cabinet of Mr. 
Davis it was the seal of his unswerving fidelity and devo- 
tion. He was true to the Confederate President in all the 
vicissitudes of his fortune, and was with him at the time 
of his capture. 

He was for some time held a prisoner at Fort Warren, in 
Boston harbor, and while there counseled the people of 

2G 



402 BENCH AND BAR OF TEXAS. 

Texas to confer the right of suffrage upon the most intelli- 
gent portion of the negroes, which was at that time dis- 
tasteful to them, and his " Fort Warren letter," as it was 
called, invoked upon him a torrent of abuse and contumely. 
They would, however, have gained nothing by the adoption 
of his views, nor did they lose anything by rejecting them ; 
for, as subsequent events show, the dominant party deter- 
mined to stop short of nothing but universal suffrage, 
which, though intended as a policy of revenge, was the most 
fortunate measure for the South and the most merciful of 
all Eepublican acts, since it has given to the South the 
power of asserting its rights in the National Congress, 
overthrew the party which forced it upon the Southern 
people, and has given a Democratic President to the coun- 
try in 1885. 

On being released from prison. Judge Reagan returned 
to his impoverished home in Texas, and with a brave 
heart set about providing a support for his family. Hav- 
ing been re-enfranchised in 1872 he was elected in 1875 to 
the convention assembled for the purpose of conforming 
the Constitution of Texas, which had been forced upon it 
by military authority in 1868, to the rights and dignity of 
the State and the wants of the people. In this assembly 
he was an able advocate of those fundamental principles 
and guarantees upon which the future welfare of the State 
depended, and was the author of the provisions protecting 
actual citizens and those seeking homes in it from fraudu- 
lent claims and forged titles. 

In 1874 he was elected from his old district to a seat in the 
Forty-fourth Congress, and was re-elected to the Forty-fifth, 
Forty-sixth, Forty-seventh and Forty-eighth, and has been 
re-elected to the Forty-ninth Congress; and during all this 
time he has devoted his energies as faithfully to the service 
of his constituency, to the interest of the Union and to the 
honor of its flag, as he did to the cause of the Confederacy. 

His career in Congress has been particularly distinguished 
for the ability and constancy with which he has advocated 
the protection and promotion of the industrial and com- 
mercial interest of the country. His Inter-State Commerce 



JOHN H. REAGAN. 403 

bill, which has been for a long time pending before Con- 
gress, is more largely promotive of the interest of the 
people than all the revenue bills, bills for internal improve- 
ments and measures of finance that have ever been invented, 
and is one of the most important measures ever brought be- 
fore Congress. For the passage of this bill he has made a 
faithful and able fight. He has had to contend against the 
great railroad and steamship companies, all the monopolies 
and nearly every great raonied corporation in the country. 
But he is still persistent and strenuous in his efforts to ac- 
complish this great public good, and is still hopeful of suc- 
cess through the power of the people; and if he is successful 
in procuring his bill to be enacted into a law of the land, 
it will cause him to be designated as a benefactor of his 
country, and his name to be handed down through the cor- 
ridors of time, as one whose foresight, ability and perse- 
verence achieved a triumph for the people over the 
oppressive aggregations of wealth and the monopolies of 
commerce that will ripen its beneficent fruits for both the 
present and the coming generations of men. 

Judge Reagan is an eminent lawyer and an able practi- 
tioner. His calm and penetrating perception, correct 
judgment and sound "common sense" enable him to 
grasp and digest a question in all its practical as well as 
philosophical bearings, and he is an excellent counselor. 

His plain, frank and self-possessed manners impress his 
honesty and uprightness of purpose upon all who come in 
contact with him, and his well known character engages 
universal popularity and esteem — the merited rewards of 
an able lawyer, a faithful oflicer, a true patriot and a good 
man. 



404 BENCH AND BAR OF TEXAS. 



Thomas Neville Waul. 



The distinguished subject of this sketch is a native of 
South Carolina, and was born near Statesburg on the 5th 
day of January, 1815. His paternal ancestors immigrated 
to Virginia at an early period, and their descendants settled 
in New Jersey and the Carolinas. Thomas was the only 
child of bis parents, and is the only remaining descendant 
of the Carolina branch of the family. He lost his mother 
during his infancy, but his early scholastic training was 
ample, and at the age of fifteen years he entered the Uni- 
versity of South Carolina, but was compelled to abandon 
his collegiate studies before graduation, in consequence of 
the death of his father and his limited means. His health, 
too, at this time was feeble, but being thrown upon his own 
resources he promptly buckled on his armor and boldly 
entered the battle of life. 

In recognition of the kindness of his stepmother he 
generously presented her with his interest in the small estate 
left by his father, and having obtained recommendations 
and testimonials of his character and scholarship, he set cut 
in 1832 on horseback to seek his fortune and a home in the 
West. Arriving at Florence, Alabama, fatigue and feeble- 
ness of health caused him to halt, and he determined to 
seek employment at that place. His intelligence and culti- 
vated manners made a favorable impression upon the peo- 
ple, and at the age of seventeen years he was elected 
principal of the Florence Male Academy. But he had at 
an early age fixed his heart on the profession of law, and, 
having taught one session, he resigned and received the 
highest testimonials from the trustees of the school. With 
these as his introduction, he proceeded to Vicksburg, Mis- 
sissippi, where he became acquainted with the afterwards 



THOMAS NEVILLE WAUL. 405 

fiimoui Sergeant S. Prentiss, and a mutual esteem was the 
natural result of their acquaintance. Mr, Prentiss soon 
discovered the genius and budding talents of the young 
visitor and admitted him as a student into his office. Here, 
in the office of Messrs. Prentiss & Guion, in the glare and 
glitter of prominent genius and legal talent, he was pre- 
pared for the bar and inspired with sentiments of the high- 
est aspiration and the loftiest aims. Having availed himself 
to the utmost of this excellent and brilliant training, he 
possessed the warmest friendship of Mr. Prentiss as long as 
that distinguished man lived. 

In 1835 he was admitted to the bar by the Supreme Court 
of Mississippi, and was soon afterwards appointed district 
attorney for the river district, including the counties lying 
along the Mississippi and the cities of Vicksburg and 
Natchez, which at that time contained the most brilliant 
array of legal talent in the Southwest. During this period 
he resided a short time in Yazoo City, and, after the expira- 
tion of his term of office, removed to Grenada, where he 
enjoyed a large professional patronage, and in a few years 
was enabled to abandon the general practice and confine 
himself to business in the Federal courts and the hish 
courts of the State. 

In 1850, having acquired an ample fortune, he removed 
to Texas and established an elegant and hospitable home on 
the Gaudaloupe, in Gonzales County ; but his interests in 
Mississippi requiring his attention, he afterwards located in 
New Orleans, where he resumed and practiced his profes- 
sion with great success. While he was never a candidate 
for a political office during his long residence in Mississippi 
and Louisiana, he was always a man of strong political sen- 
timents and firm opinions. He was a great admirer of 
Mr. Calhoun, a thorough Democrat of the State's Rights 
school, a strict constructionist of the Constitution, and 
took an active part in public debates when the principles of 
his party were assailed. The independence with which he 
ahvays maintained his own views precluded the imputation 
of ambitious designs, while the earnestness and eloquence 
with which he advocated the principles of the Democratic 



401) BENCH AND BAR OF TEXAS. 

party gave him a commanding popular influence. The rapid 
and aggressive progress of the Know-Nothings summoned 
him to the hustings, and his efficient opposition to the prin- 
ciples of that organization was recognized by the Democratic 
party in selecting him as its candidate for Congress in 1859. 
In this canvass he gained additional reputation and popu- 
larity by his eloquence, talents and force of character ; and 
notwithstanding that he was defeated by the independent 
candidate, Hon. A. J. Hamilton, his party valued the services 
of its champion, and he was made an elector for the State 
at large on the Breckinrid2;e ticket in 1860. In this can- 
vttss he predicted the coming storm and advised a united 
South and unity of action as the only means of averting 
civil war. His able appeals and their corollaries presented 
a conscientious acceptance of the situation to those who 
opposed secession and cemented the subsequent views of 
the people. 

When the State of Texas seceded from the Union in 
1861, he was chosen a member of the Provisional Congress 
which convened at Montgomery, in which he urged the most 
prompt and comprehensive preparation for the struggle as 
the most effectual means of securing peace either immedi- 
ately or prospectively, by treaty or by war. The latter 
having become inevitable before the expiration of his term, 
he declined election to the Congress of the Confederate 
States and determined to devote his services to the field. 
Returning to Texas, he raised and organized two thousand 
men into the command known as " Waul's Legion," of 
which he was elected commander. With this he hastened 
to join the Confederate troops concentrating for an attack 
upon the Federals at Corinth, but on reaching Holly 
Springs, he learned of the defeat of the army under Gen- 
erals Price and Van Dorn. His knowledge of the topog- 
raphy of Mississippi enabled him to render most efficient 
service in covering the retreat of General Pemberton and 
in the subsequent campaign and siege of Vicksburg. The 
details of his brilliant military career belong to the history 
of the country. He and his "Legion" became famous, 
first for his 2:allant defense of the Yazoo Pass, which for 



THOMAS NEVILLE WAUL. 407 

some time saved Vicksburg and the Mississippi River to the 
Confederacy, and then in the heroic defense of that city. 
After the surrender of Vicksburg he was promoted to the 
rank of brigadier-general for his gallant services, and 
ordered to Texas to recruit his Legion to the complement of 
a brigade. While thus engaged, the expedition of General 
Banks threatened an invasion of the State. General E. 
Kirby Smith offered him the command of one of his best 
brigades, which he accepted, and led his command with dis- 
tinguished gallantry and generalship in the battles of Mans- 
field and Pleasant Hill. After General Walker was 
wounded he was placed in command of the division, and 
bore a prominent part in the battle of Saline, or Jenkins ' 
Ferry, in which he was wounded, and in which the Federals 
were driven from the field, but with heavy loss to the Texas 
troops. 

At the close of the war General Waul returned to his 
home on the Gaudaloupe, and in 1865 was elected against 
his wishes a member of the reconstruction convention. 
His eminent ability and influence could again be of great 
value to his fellow-citizens. His country demanded his 
services, and to whatever that required his patriotism 
yielded obedience. He accepted the position and employed 
his best efforts to secure the adoption of a constitution 
which would remove all grounds of sectional animosity and 
at the same time preserve a recognition of the rights of the 
people and of the State of Texas. He never viewed the 
overpowering of the South as a humiliation or felt that sub- 
mission to the result of the war was a disgrace, and in a 
spirit of noble manhood and a high sense of honor he 
demanded a guarantee of the inalienable and just rights of 
a people vanquished in honorable and justifiable war as the 
only means of establishing permanent peace and national 
prosperity. These sentiments he advocated and for these 
principles he contended with a serene boldness and conscien- 
tious earnestness, with a firm and unconquerable spirit that 
excited the admiration of those who coincided in his views 
and the respect of those who opposed his efforts. 

Having lost the greater portion of his property by the 



408 BENCH AND BAR OF TEXAS. 

result of the war, he found it necessary to return to the 
practice of the law which he had abandoned some time 
before the beginning of the strife, and promptly yielding to 
the exigencies of his condition, he removed to Galveston, 
where his talents and integrity soon gained him a large 
practice and placed him in the front rank of the lawyers of 
the State. He has always taken a deep interest in promot- 
ing and elevating his profession, and was for several years 
President of the Texas Bar Association. 

His wide genius and comprehensive views have led him 
to devote his practice chiefly to commercial matters and 
cases in admiralty, and to suits in the Federal courts aris- 
ing out of large transactions and involving important prin- 
ciples of Federal jurisprudence. Yet he is equally skilled in 
all the branches of law and thoroughly conversant with 
every feature of legal science. His intellectual quidities, 
naturally of a high order, have been assiduously cultivated 
to the highest standard of professional attainment. His 
intuitive perception, close analysis and accurate judgment 
promptly seize upon and resolve the gist of the most ab- 
struse legal proposition, while his ready discrimination 
between the specious and the real, between truth and error, 
impress his positions with a certainty which it is equally 
fatal for opposition either to assail or avoid. 

He early cultivated the habit of preparing his cases with 
unsparing pains and thorough research, and his apt powers 
of analogy and knowledge of precedent afford him abun- 
dant resources for parity of reasoning and happy illustration, 
and he is rarely at a loss for imagery and example. Yet he 
is a man of great intellectual independence, and however 
well he may be acquainted with the opinions of others, he 
promptly subjects the solution of every question to the 
color of his own views and the dictates of his own judg- 
ment. 

While he has made himself a profound lawyer his thirst 
for knowledge and his love of literature have led him 
through the fields of general science and his taste has found 
congenial food in every branch of polite learning ; and this 
the brilliancy of his intellect and the versatility of his 



THOMAS NEVILLE WAUL. 409 

genius have enabled him to accomplish without apparent 
detiaction from his professional ability. He is particularly 
fond of botany, and had he devoted his talents to that 
department of science he would no doubt have roamed as 
luminously through the blooming parterres of nature as he 
does through the rugged cope of law and equity. 

His dauntless moral and physical courage enabled him to 
surmount every obstacle, to withstand every temptation and 
to pursue the path of duty dictated by integrity with un- 
swerving effort, and his success is the merited reward 
which virtue bestows upon talent and industry. 

His personal characteristics present a clear, well defined, 
arching over and blending of virtues as polished as the 
chiseled structure of his intellectual and professional attain- 
ments. He is a man of amiable qualities and courteous 
manners. His magnanimity and love of justice subjects 
his conduct to the regimen of the Golden Rule, and these 
qualities are chastened and confirmed by the cardinal 
Christian virtues. He is a consistent member of the Bap- 
tist Church, and has planted a noble influence and example 
in the path of Christianity. He was married in 1835 to 
Miss Mary iSimmons, a cultured and accomplished young 
lady of Georgia, a lady whose qualities were fashioned in 
the same mould with his own, whose graces adorn his 
elegant home and link the golden chain of domestic felicity. 

The conduct of this noble lady during the war was illus- 
trative of the truest type of Southern womanhood. Her 
career was indeed romantic and inspiring. When her hus- 
band entered the army she abandoned her elegant home 
with all its enchanting comforts and became a permanent 
attache of his command, both in camp and in the field. 
Her kindly hand was felt wherever there was need of sym- 
pathy, tenderness and care. She visited the sick and at- 
tended the wounded until her experience made her a most 
efficient member of the staff in organizing corps of nurses, 
and in preparing and regulating hospitals. 

On two occasions she was present on the field of battle, 
and exposed to the danger of shot and shell. She was in 
Fort Pemberton, on the Yazoo, while it was being bora- 



410 BENCH AND BAK OF TEXAS. 

barded by the iron-clad fleet under General Ross and gal- 
lantly defended by her husband, and could only be induced 
to leave it at night upon his urgent solicitation, when she 
crossed the river in point blank range of the enemy's can- 
non. While General Waul was in the thickest of the fight 
at the battlfe of Mansfield, one of his orderlies dashed up 
and informed him that Mrs. Waul was about one hundred 
yards in the rear. The General, it may be supposed, had 
no time then to realize the mingled impulses of surprise, 
admiration and alarm which must have flashed across his 
mind ; but he commanded the orderly to return and tell her 
she must leave the field immediately and return to Mans- 
field, that he did not wish at that time to be troubled with 
the care of women. An hour later, after the enemy had 
been driven back, the orderly returned with a large basket 
on his arm, and stated that when he delivered the message 
the lady said: "Well, I knew the General had had no 
breakfast, that he would have a hard day's work, and I 
simply wished to bring him a luncheon." The more than 
timely refreshments were then spread before the hungry 
stafi", and it required no wine or strong drink to inspire the 
hearty toast and ardent wishes for the health of the noble 
lady. 

After the battle she called on General Taylor, the com- 
mander-in-chief, at his quarters, and was met by his adju- 
tant, who in the most courteous manner offered to prefer 
her wishes to the General; but, politely declining his ser- 
vices, she desired a personal interview. When General 
Taylor appeared, as afterwards related by him, she said : 
" General, I know youi- time is precious, and I wish to 
avoid the complication and delay of your regular forms. 
We have a great many soldiers badly wounded, many dead 
and many dying. No preparations have been made for 
them, and they need food, medicine and clothing." The 
General with his characteristic promptness, turned to his 
adjutant and said: "Major Surget, issue an order to all 
quartermasters and commissaries to deliver to Mrs. Waul 
all supplies of every kmd captured from the enemy which 
she may order for the use of the hosjMtal;" and the hospi- 



THOMAS NEVILLE WAUL. 411 

tal at Mansfield was one of the best furnished in the army 
of the Confederacy. 

As the author has had occasion to remark in another 
work, history will ever accord the higliest meed of praise 
to the noble women of the South. At the first sounding of 
the tocsin of war they buckled on the armor of their hus- 
bands, fathers, brothers and sons, and bade them go with 
all the exulting pride and patriotic spirit of the dames of 
Sparta. And amid all the vicissitudes of war, and all the 
trials and sufferings that fell to their lot, they maintained 
the same spirit of defiance, the same calm, dignified de- 
meanor, an abiding faith and unswerving constancy un- 
equaled by the maids and matrons of Rome in the palmiest 
days of heroism. If they did not lop off the head of a 
Holofernes, sink ships of war, or scale the frowning ram- 
parts of an Orleans, they inspired the soldiers of the Con- 
federacy with that valor which gained the admiration of the 
world. No Susanna, Artemisia, or Maid of Orleans ever 
displayed a higher degree of genuine womanly fidehty and 
heroism. 

Nor did their devotion wane when the smoke of battle 
cleared away and the Southern flag lay trailing in the dust ; 
but with the same lofty spirit and virtuous pride they held 
the rod of scorn over those of their countrymen who, for 
one cause or another, would have dragged them down to the 
level of that state of society which a revengeful policy 
sought to establish. 

The mothers of the South have indeed had a hard time ; 
but while the years have rolled away, every month and 
day have left an effacing mark upon the sources of their 
troubles, and the great clock of destiny has summoned the 
daughters of the land to a sphere of happiness and useful- 
ness undreamed of in older days. 

All honor forever to the noble women of the South. The 
seal of their patriotism is stamped with more than mortal 
superscription. Their virtues will forever embellish the 
pages of history, and hang upon the walls of time like 
*' apples of gold in pictures of silver." 



412 BENCH AND BAR OF TEXAS. 



W. p. Ballinger. 



"William Pitt Ballinger was born in Barboursville, Knox 
County, Kentucky, on the 25th of September, 1875. His 
grandfather, Colonel Richard Ballinger, was a native of 
Virginia, and an aid-de-camp to General St. Clair at the 
time of the defeat of that general by the Indians. He re- 
moved to Kentucky in the early period of its settlement, 
and was the first clerk of Knox County, was afterwards a 
member of the State Senate, and lived to a great age, highly 
respected for his intelligence and personal qualities. His 
father, James Franklin Ballinger, was a native of Barbours- 
ville, and spent the greater part of his life as clerk of the courts 
in Knox County. He was a soldier of the War of 1812, and 
at the age of seventeen years was taken prisoner at Dudley's 
defeat, and compelled to run the gauntlet for his life. In 
1837 he was a member of the Kentucky Legislature, and 
in 1840 was an elector on the Whig ticket. He removed 
to Texas in 1868, and died at Houston in 1875, in the eighty- 
second year of his age, and in the conscientious serenity of a 
beneficent and useful life. 

The early education of William Pitt Ballinger, was ob- 
tained in the schools of his native town, and, having spent 
two years at St. Mary's College, near Lebanon, Kentucky, 
he received a thorough training in the oflice of his father, 
and at an early age became familiar with the business of 
the courts, which laid the foundation of his great success at 
the bar. In 1843, his health requiring a milder climate, he 
accepted an invitation from his uncle, Judge James Love, of 
Galveston, to remove to that place, and immediately began 
the study of law in his oflice with a vigor of determination 
which predestined the attainment of professional eminence. 

When the Mexican War began he joined a volunteer com- 



W. p. BALLINGEK. 413 

pany as a private soldier, but was soon afterwards elected 
first lieutenant of his company, and was appointed adjutant 
of Colonel Albert Sydney Johnston's Texas regiment, with 
which he served at the storming of Monterey. He returned 
to Galveston in the fall of 1846, and in the spring of 1847 
obtained his license and began the practice of his profes- 
sion. He was soon afterwards admitted as a partner in the 
firm of Jones & Butler, who did the largest practice at the 
Galveston bar, and was thus engaged at the start in the 
most important cases in the courts. In 1850, upon the 
recommendation of the judges of the Supreme Court and 
leading members of the Legislature, he was appointed 
United States attorney for the District of Texas, and filled 
that office with efficiency and ability. 

In 1859, he was employed as leading counsel in the great 
cases involving the title to the wharf property and water 
front of the city of Galveston, 23 Texas, 349. The Congress 
of the Texas Eepublic had, in 1836, granted to Michael B. 
Menard, the east end of Galveston Island for the purpose of 
building a city, and the question in dispute was whether or 
not this grant included the adjacent flats which were period- 
ically submerged, and Mr. Ballinger, in contending for this 
comprehension of the grant, enters into an elaborate discus- 
sion of both the common and civil-law definitions of what 
constitutes a sea shore, and the requisites of a dedication to 
public uses. 

In 1871 he declined a position upon the Supreme Bench, 
tendered him by Governor E. J. Davis, through his repug- 
nance to any connection with his administration. He was 
again appointed an associate justice, in 1874, by Governor 
Coke, but was induced, by the demands of his private 
affairs, to resign on the day of his confirmation. 

In 1875, he was elected a member of the convention which 
framed the present Constitution of Texas, and was chair- 
man of the committee on the executive department, and 
a member of the judiciary committee. He differed widelj' 
in his views from a majority of the convention. He was 
opposed to an elective judiciary, which he feared would 
drag the ermine through the mire of political strife, and 



414 BENCH AND BAR OF TEXAS. 

prove fatal to the purity and efficiency of the bench, and 
especially if attended with short terms and constant rota- 
tion in office. He favored salaries adequate to obtain com- 
petent public service, and protested against the curtailment 
of executive functions necessary to an efficient administra- 
tion of the government ; and, failing to impress these views, 
he opposed the adoption of the Constitution and voted 
against it at the polls. 

In 1877 he was recommended by the Governor of Texas 
and all the judges of the high courts, regardless of political 
views, for the position on the bench of the Supreme Court 
of the United States, made vacant by the resignation of 
Judge Davis, and the Texas delegation in Congress urged 
President Hays to appoint him to that place ; but partisan 
and sectional spirit reigned supreme at that time in Wash- 
ington and dictated an opposition which could spring only 
from that origin. In 1879 Governor Eoberts tendered him 
the appointment as one of the members of the Commission 
of Appeals, but he declined the office, and has steadily 
cherished a devotion and application to the duties of his 
profession, which no allurements of office or public honors 
could supplant or abate. 

Judge Ballinger was a Whig as long as that party main- 
tained a distinct organization, and still adheres to the main 
features of its political faith. He was not a sympathizer 
with the extreme doctrines of the State's rights school, 
and did not favor the theory and principle of secession. 
He warmly opposed it as an unwise and fatal measure, but 
when it became an acccomplished fact and he saw no other 
alternative but success or subjugation for the South, he 
repelled the idea of a union by force, and gave his heart 
and soul to the success of the Confederacy, trusting that a 
reunion might eventually be accomplished by choice and a 
returning sense of the folly of disunion. He was one of 
the committee sent by the people of Galveston to Rich- 
mond to procure cannon for the defense of the city, and 
while on this mission he was appointed Confederate States' 
receiver, and performed the duties of that office during 
the continuance of the w^ar. After the capitulation of the 



W. p. BALLINGER. 415 

army of Northern Virginia he was sent by Governor Murray 
as the representative of the civil authority, in company 
with Colonel Ashbell Smith, on the part of the military, 
to New Orleans to negotiate for the surrender of the 
State, and if possible prevent its military occupation. On 
returning to Galveston he resumed the practice of his 
profession, and, while voting since that time with the 
Democratic party, he is still independent in his views upon 
public questions and devoid of all political aspirations. 

Beginning the practice of law with ample qualifications, 
and amid auspicious circumstances, Judge Ballinger has 
steadil}'' advanced to the attainment of the highest profes- 
sional eminence until he has no superior at the bar of 
Texas. With intellectual endowments of a high order, his 
mind has been trained to a capacity for keen perception 
and close analysis, his judgment tutored to accuracy and 
promptness, and his habits of application adapted to the 
sternest professional requirements. Indefatigable industry 
and the love of profound study respond to a strong will- 
power, and in the preparation of his cases no depth of 
principle or medley of circumstance can escape the edge 
of his comprehension, no obstacle baffle his determination 
to eliminate truth and justice, and no presentation allure 
him from the true elements of the issue. 

Subsidiary to these qualities he possesses reasoning 
powers of a high order. His logic is strong, clear and 
closely knit, and appeals directly to reason rather than to 
sympathy or hallucination. While his language is chaste 
and correct he does not sacrifice clearness for embellish- 
ment, nor obs<;ure the stamens of fact with the carollas of 
speech. 

One of the best arguments in the Texas reports was made 
by Judge Ballinger in the case of Webster v. Heard, 32 
Texas, 685. David Webster, who died in the city of Galves- 
ton in 1856, left a will in which he emancipated his servant 
woman, Betsy, and bequeathed to her his entire property, 
coupled with a trust lodged with a lady friend in Georgia. 
His heirs, residing in the State of New York, contested the 
validity of the will. Betsy and her trustee employed 



416 BENCH AND BAR OF TEXAS. 

Messrs. Porter and Balliiiger to maintain her rights, and 
deeded them certain lots in Galveston as compensation for 
their services. Thej established the validity of the will in 
the face of strong popular prejudice, and afterwards con- 
veyed the property to Heard. Betsy's rights were safe, 
and there the matter rested until the year 1866, when a 
scalawag Radical and grace-fallen preacher turned lawyer 
and instigated Betsy to bring suit for the recovery of the 
fees paid her attorneys, upon the ground that her disabili- 
ties were not removed and her freedom was not consum- 
mated until established by the result of the war. 

Mr. Porter was then dead, and Judge Ballinger made the 
defense, and Chief Justice Morrill, in his opinion main- 
taining the validity of the conveyance, observed that " had 
the plaintiff, instead of expending what she has in this suit, 
appropriated the same in erecting a monument over the 
grave of the lamented Porter, and inscribed thereon what 
he did for her, in the furtherance of the kindness and 
benevolence of him whose name she assumes, she would 
thereby have given stronger proof than she now has that 
her gratitude has not yielded to her avarice." 

In 1854 Judge Ballinger formed a copartnership with 
Thomas M. Jack, a man of sttikingly similar personal 
qualities and professional traits, which inspired a congeni- 
ality and accord of co-operation between them, which con- 
duced greatly to the success of the firm ; and this 
association continued until the death of Col. Jack in 1880. 
He was also a brother-in-law of the latter, having married 
his sister. Miss Hattie P. Jack, of Brazoria County, in 1850. 
Immediately after his marriage he established the elegant 
residence in Galveston which is still his home — a seat of 
refinement and hospitality, which his accomplished lady 
adorns with every grace. He subsequently formed a co- 
partnership with M. F. Mott, to which J. W. Terry has 
since been admitted ; and this firm continues as one of the 
most able and successful in the State. 



J. W. THROCKMORTON. 417 



.T. W. THROCKMORTON. 



James W. Throckmorton, ex-Governor ot Texas, was 
born in Sparta, Tennessee, on the 1st day of February, 
1825. His father, Dr. William E. Throckmorton, was a 
physician of high standing and an excellent gentleman, and, 
having removed to Texas, was one of the first settlers of 
Collin County, where he died in 1843. The county of 
Throckmorton was named in commemoration of his virtues. 

The subject of this sketch received a good common 
school education, and removed to Texas in 1841. In 1844 
he began the study of medicine at Princeton, Kentucky, 
under the supervision of his uncle, Dr. James E. Throck- 
morton, and, having prepared himself for the medical pro- 
fession, he returned to Texas and enjoyed for a number of 
years an extensive practice and the reputation of being a 
skillful physician. During the war with Mexico he volun- 
teered his services to the army, and was made surgeon of 
Major Chevallie's Texas Eangers. He afterwards resumed 
his practice in Collin County, and pursued the duties of his 
profession with success until the year 1859, when, in con- 
sequence of failing health induced by the exposure and 
irregularity attending an extensive medical practice, he de- 
termined to follow the dictates of a natural taste and pre- 
pare himself for the bar, and, having thoroughly studied 
the general principles of law, he entered upon a successful 
legal career. 

In 1851 he was elected a member of the Legislature, and 
was re-elected in 1853 and 1855. His eflSciency as a legis- 
lator gained him popular favor and reputation, and in 1857 
his services were further recognized in his election to the 
State Senate for a term of four years. 

Durino; his career in the Legislature he exerted himself 
particularly for the protection of the frontier settlements ; 
27 



418 BENCH AND BAR OF TEXAS. 

for procuring the adoption of measures for quieting land 
titles throughout the State, and especially those pertaining 
to Peter's Colony, which had been for some time unsettled 
and endangered ; for the encouragement of the construction 
of railroads, and for the establishment and endowment of 
a munificent system of public schools. In his vigorous and 
able advocacy of these measures he stamped his genius and 
his name upon the cradle of the remarkable growth and 
prosperity of Texas, which has since that time spread her 
lap and her history before the world. 

He had been reared a Whig in politics and was one of the 
electors of Texas on the Scott ticket in 1852, but on the dis- 
solution of that party at the end of the campaign, spurning 
the doctrine of the Know-Nothings, which was then urged in 
opposition to Democracy, he afiiliated with the party of 
Jefferson, which he believed to be the only palladium left 
of American liberty and of the principles upon which the 
American government was founded, and it was as a Demo- 
crat that he was elected to the Texas Legislature. 

While he was conscious and sensitive of the wrongs, both 
actual and prospective, both perpetrated and threatened 
upon the Southern people by the advent of the Republican 
party to power in 1861, he was firmly opposed to secession 
as the proper mode and measure of the redress of Southern 
grievances, and, in this respect, harmonizing with General 
Houston and other eminent Texans, he was elected, while a 
Democratic member of the State Senate, as a Union man 
to the Secession Convention, in which he employed his best 
efforts to retain the allegiance of Texas to the Union and for 
the adoption of measures for maintaining its rights under the 
national flas;. He was earnest and conscientious in his views. 
He was one of the seven members who voted against the 
ordinance of secession, and it is said that when he an- 
nounced his vote some one hissed in the crowded galleries, 
upon which he rose to his feet and addressing the chair 
said: " Mr. President, the rabble may hiss while patriots 
tremble." Yet he announced that if the ordinance was 
adopted and ratified by the people, he would maintain the 
honor of his State and defend her action to the utmost of 
his ability. This attitude, if it did not attract respect to 



J. W. THROCKMORTON. 419 

his views, gained him great personal popularity. It ac- 
quired respect for his integrity and the purity of his motives, 
and he was applauded. 

Texas withdrew from the Union with the voice of an over- 
whelming popular majority. Mr. Throckmorton had 
plighted his fidelity to her wishes, and, like Gen. Jubal B. 
Early, immediately buckled on his armor for her defense. 
He commanded a company in one of the first regiments or- 
ganized in the State, and participated in the capture of 
Forts Washita and Arbuckle, on the Texas frontier, which 
was accomplished without bloodshed by the boldness and 
celerity of the expedition. He was afterwards captain of 
a company in the famous Sixth regiment of Texas cavalry, 
and rendered important service in the Missouri campaign. 
He led his company with distinguished gallantry in the 
Indian fight at Chustennallah and in the two day's battle at 
Elkhorn. 

In the latter part of 1862 he was transferred to Corinth, 
Mississippi, where his command was reorganized, and, de- 
clining re-election to the captaincy in consequence of broken 
health, he returned to Texas, where he was for sometime 
disabled by disease for active duty. He afterwards per- 
formed efficient service in the campaign in Louisiana, and 
his health again failing, he retired once more, and was af- 
terwards appointed by the Governor of Texas to the com- 
mand of State troops, with the rank of brigadier-general, 
in which position he acquitted himself with honor and 
efficiency. He was soon afterwards elected to another term 
of four years in the State Senate, and as soon as the ses- 
sion of that body was over he resumed his command in the 
field. 

During the last year of the war he was sent by Gen. E. 
Kirby Smith, the commander of the Trans-Mississippi De- 
partment, to treat with the Indian tribes inhabiting the 
Texas border, who had assumed a threatening attitude 
seriously endangering the safety of the frontier settle- 
ments. He succeeded in effecting the pacification of the 
Comanches, Arapahoes, Kiowas, Lipans, Cheyennes, and 
other fierce tribes, which required great tact and caution. 



420 BENCH AND BAR OF TEXAS. 

At the close of the war he returned to his home and re- 
sumed the practice of his profession. He quietly accepted 
the situation, and bent his energies towards the re-estab- 
lishment of peace and order in conformity with the policy 
of the President. In 1866 he was elected a member of the 
reconstruction convention assembled under President John- 
son's proclamation, and was chosen president of that body. 
In June, of the same year, he was elected Governor of 
Texas, under the new Constitution, by a large majority, 
and was inaugurated on the 8th of August. As Governor, 
his course was wise and conservative. His efforts were 
directed to the building up of the waste places scourged by 
the besom of civil war, and to the restoration of peace and 
friendship between the dissevered and discordant sections 
of the country. But his efforts were soon thwarted by the 
partisan and revengeful process of reconstruction adopted 
by the Federal Congress, which superseded the more pacific 
and just designs of the President. On the 9th of August, 
1867, he was deposed by a missile containing three lines 
from an officer of the United States Army at New Orleans, 
who was temporarily in command of the military district of 
Louisiana and Texas. 

On being thus forbidden to exercise the functions of his 
office, to which he had been peaceably elected by three-fourths 
of the Texan people. Gov. Throckmorton retired to his home 
in Collin County, where, disfranchised in common with 
thousands of his fellow-citizens, he remained in private 
life, watchful of the progress of events, yet unable to stay, 
even so much as by his vote, the tide of vengeance that 
rolled over his State. 

In 1874, on the restoration of the ballot-box to the 
people, he was elected to a seat in the United States Con- 
gress by a large majority of the voters of his district, and 
was re-elected in 1876. At the expiration of his latter 
term, in 1879, he declined a re-election, and retired per- 
manently to private life, in which, in spite of the pains of 
physical debility, he has enjoyed the reward of duty con- 
scientiously performed, and the highest respect of his 
fellow-citizens. 



J. W. THROCKMORTON. 421 

Ex-Governor Throckmorton is a man of versatile genius 
and varied attainments. His reading has been extensive 
and his mind has been trained to those habits of calm 
reflection and steady contemplation which lead to a prac- 
tical view of things. While he is naturally a man of quick 
impulses and vehement sensibilities his actions are con- 
troled by a sound judgment and tempered by a serene dis- 
cretion- He is a fluent and interesting speaker, enthusiastic 
in the advocacy of his views, and strikes straight at the 
crest of opposition. Yet he is plain and terse in his elocu- 
tion and avoids all efforts at ornation or display. 

He is a man of strong and sincere attachments, and few 
men have more or warmer personal friends. He was mar- 
ried while he was a young physician, to Miss Annie Katten, 
whose father emigrated at an early day from Illinois — a 
lady full worthy of all he could bestow. 



422 BENCH AND BAR OF TEXAS. 



JOHN Hancock. 



The subject of this biography was born in Jackson 
County, Alabama, on the 24th day of October, 1824, 
whither his father, John Allen Hancock,. a native of Vir- 
ginia and a planter, had emigrated in 1819. Having de- 
voted several years of his boyhood to the duties of the 
farm and acquired the habits of industry and economy in- 
culcated by that most moral of all early training, he was 
afforded excellent educational advantages in the University 
of East Tennessee at Knoxville, in which he pursued a 
thorough course of studies and vigorously availed himself 
of his opportunities. 

In 1843, he began the study of law under the supervision 
of Judge William Taul, an eminent lawyer of Winchester, 
and in 1846 was admitted to the bar in his native county. 
But possessed of an enterprise, an ambition alert for grand- 
est possibilities, he determined to seek his fortune in Texas, 
and, having spent several months in prospecting for a suit- 
able locality, he settled, in 1847, at Austin, where he formed 
a copartnership with Hon. A. J. Hamilton, and which has 
since been his constant residence. His close application 
and fidelity gained him friends and patronage. He soon 
acquired distinction and a large practice at the bar, and in 
1851, when but twenty-six years of age, was elected judge 
of the Second Judicial District. His career upon the bench 
was characterized by honor and eflSciency. His searching 
investigations gave soundness to his decisions. His prompt- 
ness and dispatch, attended by a dignity and gravity of 
•manner rarely found in one of his age, commanded confi- 
dence and respect, and he had the reputation of being a 
just, impartial, and able judge. 

In 18,55 he resigned the judgeship and formed a copart- 



JOHN HANCOCK. 423 

nership with Hon. Charles S. West, which continued until 
the latter was elected to the bench of the Supreme Court 
in 1883, and he then became associated in practice with his 
present partner, General N. G. Shelley. In conjunction 
with these gentlemen respectively he has been engaged 
while not on the bench or in Congress in nearly all the im- 
portant land cases that have come before the courts in his 
section of the State. He is thoroughly familiar with the 
land laws of Texas, with the origin and nature of the 
various tenures by which the lands of the State are held, 
and his practice in these cases, especially, has been attended 
with remarkable success. While he is a man of fine natural 
abilities and general attainments, his success as a lawyer is 
largely due to a steady and almost unremitting attention to 
the business entrusted to him. It has been his rule to spend 
every business hour in either his office or the court-room, 
and it is said of him that during the thirty-eight years of 
his residence in Austin he has not spent that many hours 
on the streets undevoted to the requirements of his busi- 
ness, and that during all that time he has never failed to 
keep a professional, official or political engagement. 

Some of the most important cases argued by Judge 
Hancock are Carter v. Carter, which is a leading case as 
to the admissibility of parol testimony to show that " a deed 
or bill of sale absolute on its face is a mortgage," and Han- 
cock V. McKinney, 7 Texas, 384, which was a highly im- 
portant case at the time, as it determined the consideration 
to be given by the Texas courts to conditional titles to land 
emanating from the preceding government, when the con- 
ditions had not been performed by the grantee, and to 
other questions relating to Mexican titles. The court re- 
jected his views, but the Constitution of 1875 adopted, in 
its thirteenth article, the policy for which he contended. 
These cases were argued by him before his election to the 
bench. 

While judge of the Second Judicial District he intro- 
duced several important rules, which greatly promoted the 
facility of the court in the dis])atch of business, and which 
have been followed bv his successors. One of which was 



424 BENCH AND BAR OF TEXAS. 

that practicing lawyers should not absent themselves from 
the court-room during the sitting of the court without no- 
tifying the sheriff of the place at which they could be 
found. Upon which a reasonable time would be given for 
sending for them; but no lawyer would be called as 
had been the custom and the cause of frequent and pro- 
longed delays. The other rule was to order parties con- 
victed and fined into the custody of the sheriff and to stand 
committed until the fine was paid. Previous to this 
parties convicted of misdemeanors, especially gamblers, 
would walk out of court in defiance of the law and regard- 
less of the penalty imposed by the judge. In addition to 
this he informed the sheriff that his custody meant confine- 
ment in the county jail, and the beneficial effect of the 
rule was soon obvious upon all classes of society. 

One of the most important and interesting questions 
argued by Judge Hancock after his return to the bar was 
the habeas corpus case of Peebles and others before the 
Supreme Court of Texas, in 1864. The history of this case 
is interesting as it presents a view of the conflict of law 
and public sentiment which often pervaded whole commun- 
ities in those unsettled times. It is as follows: — 

In 1863, J. D. Baldwin, a lawyer of Houston, wrote and 
published his views of secession in a pamphlet entitled, 
"Common Sense;" in which he arraigned its origin, its 
purpose and the manner in which it was accomplished, to- 
gether with the manner in which the war was being con- 
ducted, and its ultimate consequences. 

This work was printed by a German, named Zinke, with 
whom another German named Hilderbrand was supposed to 
be associated in the matter, and was covertly circulated. 
The work produced feelings of indignation and bitterness 
against the author and all who were supposed to be accom- 
plices in its production and circulation. Baldwin was upon 
terms of social intimacy with Dr. R. E. Peebles, a wealthy 
planter on the Brazos River, and, before that time, a man 
highly respected in his community, though a staunch 
and avowed Union man, and frequently visited his resi- 
dence. This caused the complicity of Peebles in the pub- 



JOHN HANCOCK. 425 

lication to be suspicioiied, and the result of public 
sentiaient was that a military order was issued for the 
arrest of Baldwin, Peebles, Zinke and Hilderbrand. The 
prisoners, after having been confined at respective places, 
were taken to San Antonio, where the public feeling was so 
exasperated against them that threats were made against 
their lives, and they would no doubt have suffered the 
utmost violence had it not been for the prompt and stern 
protection afforded them by Capt. Thomas E. Sneed, now 
a prominent lawyer of Austin, who was in command of 
the company detailed to guard them. This sentiment 
against them ran so high that the lawyers of San Antonio, 
Houston and other places, either through condemnation, or 
fear of public disapproval, declined to take any steps in 
behalf of the prisoners, notwithstanding that their friends, 
especially the family of Peebles, had made eveiy effort ajid 
offer of inducement to procure counsel for them. 

Under these circumstances Mrs. Peebles repaired to Aus- 
tin and personally sought the services of Judge Hancock 
in an elFort to save, as she supposed, the life of her hus- 
band, and without fee or reward he undertook their cause, 
and obtained a writ of habeas corpus from the Supreme 
Court, upon which the prisoners wea'e tried and liberated. 
This result, effected in the midst of popular excitement, 
he achieved by a calm and deliberate discussion of the 
principles of constitutional law, the inalienable rights of 
the citizen, and the obligations of those clothed with 
judicial authority to confoim their adjudications to the 
written law of the land and to the dictates of human rights. 
He boldly denounced the assumption of arbitrary power by 
the military authorities, and his victory was a vindication of 
the inalienable rights of an American citizen. 

In politics. Judge Hancock has always been a Democrat 
of the Jacksonian school ; he was opposed to the doctrines 
of nullification and secession, and in 1860 was elected to the 
Legislature on the Union ticket; but in 1861, declined to 
take the required oath to the Confederate government, and 
was deprived of his seat. During the war he maintained a 
neutral attitude, and divided his attention between the 



426 BENCH AND BAR OF TEXAS. 

practice of his profession and the supervision of his stock 
farm until he was threatened in 1864 with compulsory mil- 
itary service in a cause, the policy and character of which 
were against his convictions. He then repaired to Mexico, 
and having resided several months in that country, he made 
his way to the United States and remained at the North 
until the close of the war. 

At the termination of hostilities, Judge Hancock returned 
to Texas and devoted his efforts to the amelioration of the 
condition of the people, and had his advice at that period 
been heeded, and the position he assumed been adopted, it 
would no doubt have greatly paralyzed the revengeful de- 
signs of the dominant party at the North, which were pro- 
moted by the reluctance of the Southern people to accept 
the full results of the issue. He was a member of the State 
Convention of 1866, and used his best efforts in the interest 
of conciliation and the immediate restoration of harmoni- 
ous relations betw^een the State and the Federal government 
as the only means of restoring the peace and prosperity of 
the people. Time, the great monitor of events, has vindi- 
cated his sagacity and established the correctness of his 
views, and he is considered a wise counselor both as a law- 
yer and statesman. 

In 1870 he was tendered the nomination for Congress 
by a convention held at Seguin, but he declined in obedi- 
ence to the demands of a large law practice, which he was 
not disposed to exchange for political honors; but in 1871 
he yielded to the popular wishes and accepted the nomina- 
tion as the Democratic candidate. He was easily elected, 
and served by re-election until 1877, when, having been 
defeated for renomination, he resumed the practice of law. 
His services in Congress had been faithful and eminent. 
His industrious habits, his business capacity, his practical 
genius, his kindness of heart, suavity of manners, and pol- 
ished urbanity, crowned with conspicuous talents, gave him 
great influence, and he pursued with a steady purpose the 
accomplishment of that which he conceived to be the best 
interest of his constituenc}^ his State and the country. So 
marked had been his efficiency, and so able and beneficent 



JOHN HANCOCK. 427 

his career, that his services were again demanded, and in 
1882, he was elected to the Forty-eighth Congress. lu 1884 
he declined re-election, and after participating in the pro_ 
ceedings preliminary to the glorious inauguration of Presi- 
dent Cleveland, he once more returned to the practice of 
his profession at Austin where he is now engaged in a large 
business. 

The brilliant career of Jud^e Hancock is due to his force 
of character and the qualities already mentioned. He pos- 
sesses no superior natural gifts as an orator and has never 
cultivated the artificial embellishments of speech or the 
mere flowers of oratory. He disdains all its "flower 
decked plats and blooming parterres ; " but, with his pur- 
pose well defined and his object constantly fixed in his view, 
his acute perception and cultivated judgment marshal 
every available point in the line of his argument, while a 
strong, powerful logic presents the merits of his case to the 
comprehension of common sense, and seizes upon convic- 
tion with the grasp of reason. 

" The fluency of speech in many men and most women," 
says Jonathan Swift, " is owing to a scarcity of matter, 
and a scarcity of words ; for whoever is master of lan- 
guage, and hath a mind full of ideas, will be apt in speak- 
ing to hesitate upon the choice of both ; whereas fluent 
speakers often have but one set of ideas and one set of 
words to clothe them in ; and those are always ready at the 
mouth; so people come faster out of the church when it is 
almost empty, than when there is a crowd at the door." 

It is true that there are prominent exceptions to this rule 
as in the instances of Daniel Webster, Henry Clay and 
Sergeant S. Prentiss ; but these exceptions have their origin 
in pre-eminent genius and, therefore, only affirm the 
aphorism. 

Judge Hancock is a man of great energy and integrity 
of purpose, and views with impatience and intolerance 
every effort of evasion or undue advantage, and has no 
complacency with mere trifling with matters of importance. 
His last debate in the House of Representatives was upon 
the Fortification Bill, reported from his committee on the 



428 BENCH AND BAR OF TEXAS. 

1st of March, 1885. For some reason the calibers of the 
guns used in the United States navy were assized by odd 
numbers while those used in the army are varied by even 
numbers. Judge Hancock contended that the calibers of 
all should be uniform, so that the same ammunition could 
be used both on sea and on land, and be interchangeable in 
the event of a deficiency in either branch of the service, 
and so that army officers could understand the use of navy 
guns and naval officers the use of army ordnance without 
special training. 

Some of the members during the debate on this bill in 
the conmiittee of the whole availed themselves of their five 
minutes' time to discuss the question of silver coinage. To 
which Judge Hancock sternly objected, saying that it was 
not proposed by the bill to fabricate cannon and build 
fortifications out of silver. 

In his speech on " counting the electoral votes," delivered 
in the House of Representives on the 25th of January, 
1877, he said : — 

" Nothing is more hateful than a treacherous duplicity and 
a pretense of fairness merely delusory and intended to de- 
fraud. Everything which seems to be fair in this act of 
legislation is merely specious, insincere, and destructive. 

" The board is to be at first composed of persons from all 
political parties, but it is not provided that it shall con- 
tinue so. A vacancy occurring should be filled with one 
from the same political party as the last tenant, but it is 
not promised that it shall be, and those who are to elect 
can not be made to elect at all. A person interested as a 
candidate is to be allowed a hearing, but there is no promise 
that the hearing: shall be full or fair. The returning officers 
are to hear testimony, but it is not provided that they shall 
do this publicly, or that there may be cross-examination or 
opportunity for rebuttal, or previous notice to any one in 
all the world. Their conclusions are to be considered prima 
facie correct, and may be gone behind in a formal proceed- 
ing to contest, but their findino-s as to the material facts are 
final and it can not be shown that they ought not to have 
been convinced. To sum all up in a word, they can truly 



JOHN HANCOCK. 429 

plead they had ample warrant in the letter of the law for 
doing all they have done and for abundant sharp practice 
besides. There is no limit to the amount of villainy which 
the law makes possible and permits. 

" It has been said to be ' the common method of all sjov- 
ernments now received in the world to allow almost every- 
thing that tends to the corruption of manners, and then to 
restrain those corruptions; a work,' it is added, ' far be- 
yond the power of the longest experience and greatest 
prudence.' The act in question is a resort to one of those 
pernicious practices that tend to destroy public liberty. It 
proposes to legalize the ill-designs of inveterate knaves, 
never boldly attempted to be carried into effect by legisla- 
tion in a republic until it is declining to its fall. It was 
most trul}' said by Fletcher that ' a government is not only 
tyranny when tyrannically exercised, but also when there 
is no sufficient caution in the constitution that it may not be 
exercised tyrannically.' 'AH governments,' he said, 
' are tyrannical which have not in their construction a suf- 
ficient security against arbitrary power.' 

" This act is tyrannical because it intrusts arbitrary power 
to five men or a less number, to be exercised without power 
of control or security against abuse in any quarter. It 
puts it in their power arbitrarily to annul the votes of whole 
parishes and cities, and so makes the right of suffrage of 
all the citizens depend upon their favor, their caprice, their 
interest, their irresponsible will. It is, therefore, not only 
violative of the rights of men ; it not only makes the elec- 
tive franchise and title to office, both of which are property, 
exist or disappear at the pleasure of four or five men having 
perpetual succession, but it makes the government of a 
State a tyranny, and not republican even in form." 

Perhaps the most important and effective speech made by 
Judge Hancock in Congress was that on Indian affairs de- 
livered in the Forty-third Congress. By this speech he was 
enabled to change the policy of the government towards the 
Indians so far as to prohibit the issuing of rations to them 
for more than seven days at a time, and to cause the order 
that they would not be permitted to leave the reservations 



430 BENCH AND BAR OF TEXAS. 

unless accompanied by an officer of the United States. 
These regulations have prevented any raid from being 
made into Texas since that time, except from Mexico. 

In 1876 he was assailed by Col. D. C. Giddings, the 
Democratic nominee for Congress, for having failed as a 
Southern Union Democrat to keep his promise to defend 
the Southern people against the violent attacks which were 
then being made by Radical partisans in Congress ; and it 
was charged by Col. George Flournoy, an orator of Gal- 
veston, that he had been elected to Congress by the Texan 
Democracy for the sole purpose of mollifying the asperity 
of the North towards the people of the South, and that 
Galveston Democrats rejected him because he did not de- 
fend them when Blaine, Morton and others were heaping 
calumny and slander and falsehood upon them on the floor 
of Congress. 

To these charges he published an elaborate reply and 
refutation which he concluded with the followino; observa- 
tions : — 

" Why should I have been brought into this Congressional 
contest? My merits or demerits could neither add to nor 
take from those of Col. Jones or Col. Giddings, and 
whether I may have at all times done the wisest and best 
thing, or sometimes erred in judgment, as T often do, being 
but a frail, fallible mortal, almost every day looking back 
to find some error of yesterday I would correct, could in no 
way aid the people to a correct judgment in deciding be- 
tween these aspirants. It was known I had been invited 
and gone to a remote part of the State, and taken no part 
in the contest, wished to take none further than vote for 
Col. Giddings, as I did, he being the nominee of the con- 
vention before which friends had placed my name, which 
in honor bound me, as well as duty to my friends, to abide 
by the action of the convention ; they both claimed to be, 
and, I doubt not, have ever been. Democrats, and it was the 
people's right to choose between them. The action of the 
convention was only persuasive, not binding on them. On 
principle, as also by usage, they are, and should be, left 
free to vote as, in their judgment, will best subserve the 



JOHN HANCOCK. 431 

public welfare. For me to have sought to inflence their 
selection, tis between two Democrats, as to which of them 
should be my successor, would have been not free from 
criticism, besides both professed to be my warm personal 
and political friends. My friends and staunch supporters 
brought Colonel Giddings's name before the convention, 
supported and secured his nomination. The same men 
canvassed for him, and elected him, and he, till he reached 
Galveston, wherever he spoke of me, employed terms of 
eulogy and approval; but of those who conspired for my 
defeat, at all hazards, here he found himself among the 
chief priests, and then Judas said, ' Hail Master, and kissed 
him.' It seems, too, it had become popular with some of 
the would-be leaders in Galveston to abuse and say spiteful 
things of me. I have not been able to do a tithe of what I 
wished to advance the growth and prosperity of that city. 
The little I have done ought not to excite the enmity of 
that class of persons who are ever ready to become the 
enemy of those who render them favors and benefits, to 
show how independent they are. I remember, too, that 
among the most gloomy and foreboding features of our 
political history are those instances where artful, designing 
and ambitious demagogues conspired to move the public 
mind, by falsehood and misrepresentation, to passion and 
prejudice, till the people displaced, for a time, from their 
confidence, men deserving better of them than I have the 
abilitj' to do. I have made no murmur of complaint and 
feel I ought to have been allowed to remain silent. If my 
defeat does not reflect the wish of the people of this 
district, in their own good time they will rebuke those who 
refused to reflect their views. I have not thrust myself 
upon the people, at any time, and have only held ofl5ce and 
served them when they have manifested a desire to have me 
do so ; but it seems determined, the people shall not mani- 
fest such wish if any manner of falsehood and misrepre- 
sentations can prevent. 

" In Congress I have pursued that course, and observed, 
in my intercourse with others, that demeanor and deportment 
towards them which I believed best, to enable me to accom- 



432 BENCH AND BAR OF TEXAS. 

plish results deemed beneficial to those I had the honor to 
represent and all the people of Texas. I have not been 
able to accomplish all, or near as much as I could have 
wished, for their benefit. How far I have succeeded is 
shown by the record and known of many men. I have not 
paraded my humble achievements for the applause or the 
gratitude of the people, or for comparison with results 
effected by my colleagues ; each has ever done, most cer- 
tainly, all in his power ; far be it from me to seek to de- 
prive any of the merit of his conceptions, laborer influence. 
They are all able, eflScient and faithful, and deserve, as they 
have received, well of their constituents. 

" Had the people who had honored me by electing me their 
representative, or of Texas or the South, been traduced or 
reviled, a failure to have properly repelled the slander or 
defended them, would have been a proper subject of criti- 
cism ; but assaults made upon individuals should be con- 
sidered and treated responsive to the purpose aimed to be 
accom[)lished by the assailant and the wrong or injustice to 
the individual assailed with reference to the facts and con- 
ditions of the subject-matter about the conduct of which the 
assault is made. The purpose was a common expedient 
resorted to by the demagogues, both North and South, as 
everywhere else, when occasion requires, to influence the 
passions and rekindle the prejudices of the people by revi- 
talizing dead and past issues, as questions pending before 
and to be decided on by them in a pending political contest. 
The alleged cruel treatment and great suffering of prison- 
ers, in consequence of the brutal and tyrannical conduct of 
the war under and by authority of Mr. Jefferson Davis, 
were the subjects aptly selected to be presented to, discussed 
before, and passed upon by the people in electing a Presi- 
dent of the United States. Questions in no way connected 
with the different theories and measures of governmental 
policy maintained by the contending parties, or that could, 
in any degree, aid the people to decide on the respective 
merits of opposing candidates ; but well calculated to effect 
the object desired of diverting the public mind from the 
real issues involved in the election, by reviving the preju- 



JOHN HANCOCK. 433 

dices and passions of the people and inducing them to again 
pass on the merits of secession and the war, rather than on 
the inefficiency, malpractices and corruptions of the admin- 
istration and party in power. No doubt, had it been per- 
mitted, the party bringing forward these false and dead 
issues of secession and the war, would have kept up their 
discussion through the session of Congress and till the ter- 
mination of the presidential contest. Considered in a 
political aspect, to have protracted discussion, the Demo- 
cratic party could have gained nothing and might have lost 
much. Reo-arded in that lio-ht, enouo;h had been said, and 
from the most effective quarter, when Mr. Cox and Mr. 
Kelley had spoken. How far Mr. Davis might be affected 
by the assault on him was proper to be determined by his 
personal friends and past political associates. They deemed 
it a duty to defend and vindicate his name, though his 
whole course had already become history, not to be changed 
by what politicians might think or say of him for partisan 
purposes. So far as secession and those engaged in the 
effort to accomplish it, or still keeping it up may have been 
brought in by implication, though I do not conceive that 
either was, even by implication, reached by the assault on 
Mr. Davis, I could not have been a proper advocate for 
either. 

" It is well known I opposed secession. I did so upon 
my convictions that it was wrong — very wrong — would 
bring war, desolation and disaster upon the country, ruin 
and death to thousands, whatever the result, and success 
would eventuate in the overthrow of republican government 
and the establishment of a monarchy. Others favored the 
measure upon their convictions, equally sincere, proven by 
the highest testimony man could offer, the yielding up of 
life itself, that none of my apprehended evils would follow 
and that great ultimate good would be accomplished. A 
great problem in the science of human government was in- 
volved, upon which the wisest men might honestly differ. 
But on that account, if good and truly patriotic, they would 
retain no personal enmities, when the issue should be settled 
28 



434 BENCH AND BAR OF TEXAS. 

and passed into history. When the war was over, I knew 
no feeling of enmity or unkindness towards any one on 
account of difference on the question of secession. My 
law partner, for over a score of years, and I returned to 
our old office near the same time, he from the Southern 
army, in which he had served as a soldier, and I from a 
section of country held by the Union army. We resumed 
our places at our accustomed desks and took up business 
where we left off without, I am sure, a recognizable change 
in our mutual feelings of friendship, respect and confidence, 
as they were before secession began. I so felt and acted 
towards all who disagreed with me on that momentous 
question. That feeling and conduct have been reciprocated 
by many zealous secessionists, who faithfully performed 
every duty devolved on them by the attempted revolution. 
But when the contest was ended, they returned to their alle- 
giance and duty as became honest men and patriots, and I 
am proud to be able to claim many such among my most 
trusted friends and supporters. I have ever been as readj- 
to trust and to serve them as if we had never difi'ered. It 
has been my pleasure, as I believe it my duty, to do 
all in my power to alleviate the people in their distress, and 
to ameliorate their condition as left by the war, to shield 
and defend them from what I deemed an unwisely rigorous 
policy, to rehabilitate them with all the political rights, that 
by prudent and vigilant use of them they might secure to 
themselves good government and renewed prosperity. No 
one can truthfully say I have not freely used every influence 
my position and humble ability gave me for the accomplish- 
ment of these results. But I was as pronouncedly and 
unqualifiedly opposed to secession as any man could have 
been in favor of it. No reasonable man would expect me 
to become its advocate or defender in Congress, and the 
defense of the leaders, arraigned for the mode of conducting 
the war, manifestly might be appropriately left to members 
who co-operated with them in carrying it on — were better 
prepared by greater familiarity with the facts, and inter- 
ested in vindicating the conduct of their leaders — than be 



JOHN HANCOCK. 435 

required of members who from the first disapproved seces- 
sion, and would not likely have the same familiarity with 
the transactions complained of. 

" Though I have been as well abused and as wantonly mis- 
represented, and from as malicious and selfish motives, as 
any man in the State, I have not before this deemed it nec- 
essary to make any defense. But, *on this occasion, the 
attacks are so extraordinarily monstrous ;n their moral de- 
formities when their accuracy is tested by the public records 
of the country, that I felt it due as well to the people as to 
myself that they should know from these authentic sources, 
the facts. For in my retirement, now soon to occur, 
from all political position, I have the satisfaction of know- 
ing that I never have been afraid to tell the people the 
truth, and then abide their ultimate judgment." 

In social life, Judge Hancock is a man of exceedingly 
popular traits of character. He is devoted and constant in 
his personal attachments, and has many warm friends 
throughout the State who would sustain him for any posi- 
tion of public trust, and would have been glad to have seen 
him occupy a place in Mr. Cleveland's Cabinet, as one who 
would have possessed the confidence of the North and would 
have been true to the interest of the South. But in his re- 
tirement from long public service he no doubt enjoys the 
sweetness of that repose which follows the conscientious 
performance of honestly conceived duty. 

He was married in November, 1855, to Miss Sue E. 
Richardson, who is a native Texan, and the granddaughter 
of Hon. Asa. Brigham, first secretary of the treasury of the 
Texas Eepublic. This admirable lady has woven into his 
busy life every charm of domestic felicity. 



4oO BENCH AND BAU OF TEXAS. 



JOHN SAYLES. 



This eminent lawyer and legal writer is a native of New 
York and was born in Vernon, Oneida County, on the 9th 
of March, 1825. His father, an eminent physician, and a 
native of Ehode Island, was of English descent and 
belonged to one of the oldest families of the country. His 
ancestor came to America in the ship with Roger Williams, 
and afterwards married his daughter. The mother of John 
Sayles was the grand-daughterof John Sergeant, a celebrated 
divine and missionary to the Stockbridge Indians of Massa- 
chusetts, and was connected with the families of Edwards, 
Dwight and Sedgwick, which have produced many members 
distinguished for their scholarly learning and ability. 

The early advantages of the subject of this sketch were 
good. He was educated at an academy in his native town 
and at Hamilton College, New York. His father was a 
man of limited means, and in his fifteenth year young 
Sayles taught school to help to defray the expenses of his 
collesiate course. On leavino; colleo;e in 1844, he found his 
fate depending entirely on his own resources ; but buoyed 
by his genius and ambition, and supported by the staff of a 
virtuous resolution, he stepped boldly upon the journey of 
independent life ; and while no glittering prospects at that 
time charmed his view, his destiny was haloed with the 
devout benizons of a father's blessing and the hallowed 
guerdon of a mother's prayers. These were his only patri- 
mony. With these he went forth, and his energ}' and 
determination soon cleared away the untoward circum- 
stances that clustered in his pathway. 

Soon after having completed his course in Hamilton 
College, seeking for a propitious field for his labors, he 
turned his eyes towards the South, as if impelled by those 



JOHN SAYLES. 437 

warm and generous feelino-s which sou«jht and found a con- 
geniality among its hospitable people, and in 1844 went to 
Georgia and engaged in teaching there one year. In 1845 
he removed to Brenham, Texas, where he taught school a 
year and a half. He studied law while engaged in teach- 
ing and was admitted to the bar at Brenham in 1846, where 
he has since continued to reside and practice. 

He was a member of the Fifth Legislature in 1853-55, 
and was chairman of the sub-committee to which was 
referred the criminal codes reported to that Legislature. 
With this exception he has never permitted the attractions 
of political office to allure him from the jealous duties of 
his profession, which he loves with the fondness of a 
devotee. 

In 1849 he married Miss Mary Gillespie, a most excellent 
and accomplished lady, the daughter of Barry Gillespie, a 
prominent law3^er of Washington County, and soon after- 
wards formed a copartnership with his father-in-law, which 
continued until the death of the latter in 1851. After 
which he was associated four or five years with W. T. 
McFarland, and in 1857, the firm of Sayles & Bussett was 
formed, and continues to exist. 

He was early imbued with the sentiments and principles 
of the people with whom he had cast his lot, and became 
thoroughl}^ Southern in his views. When the Civil War 
began in 1861, he was made brigadier-general of the Texas 
militia and was subsequently adjutant-general on the staff 
of General Magruder in the Confederate service. - 

As a lawyer General Sayles is brilliant and profound. 
The faculties of his mind are quick, energetic and grasping, 
and are alwaj^s at his command. He has mastered every 
principal feature of law, and his familiarity with funda- 
mental principles, the philosophy of legal science and the 
decisions of the courts, furnishes him with a store of prece- 
dent from which his genius never fails to model an apt 
analogy. He ig quick to perceive the substance and char- 
acter of a proposition, and his powers of analj^sis readily 
penetrate the most complex questions of law tiud fact. His 
cases are carefully and thoroughly prepared, and he is thus 



438 BENCH AND BAR OF TEXAS. 

prepared not only to avail himself fully of the merits of his 
own side of the question, but to anticipate the points made 
by his adversary. He embodies his thoughts with the in- 
terest of his clients and clings to their cause with the fidelity 
of a zealot. 

His arguments are always logical and closely woven, and 
the presentation of his cases clear, forcible and convincing. 
His opinion, as special judge, in The State v. Delesde- 
nier, 7 Texas, 95, is an exemplification of eminent judicial 
qualities ; and his elaborate argument in Hancock v. Mc- 
Kinney, 7 Texas, 384, and in Fowler et al. v. Stoneum, 
11 Texas, 478, in the former of which he discussed the 
character of concessions and the difference between perfect 
and imperfect titles, and in the latter the question of 
fraudulent conveyances, are strikingly illustrative of his 
qualities as an advocate. 

While Gen. Sayles has given to his profession all that 
allegiance which Lord Eldon says it demands, his knowl- 
edge of law, combined with his fondness for its philoso- 
phy and literature, the energy and business qualifications 
which abetted and developed his talents, led him into the 
paths of legal tuition and authorship. In 1880 he was 
one of the law faculty of Baylor Universit}'', near Bren- 
ham; and his law works are of great merit and value. 
These are well known to the profession, and are en- 
titled : — 

" A Treatise on the Practice in the District and Su- 
preme Courts of Texas." First edition, 1858; second 
edition, 1873 ; third edition, 1882. 

" Treaties on the Civil Jurisdiction of Justices of the 
Peace in the State of Texas." First edition, 1867; 
second edition, 1877 ; third edition, 1882. 

" Treaties on the Principles of Pleading in Civil Ac- 
tions in the Courts of Texas." 1872. 

" The Probate Laws of Texas." 1871. 

'« Constitution of Texas, with Notes." First edition, 
1872; second edition, 1884. 

" Laws of Business and Form Book." 1872. 

*' Notes on Texas Reports." 1874. 



JOHN SAYLES. 439 

General Sayles is also a bright and devoted Mason, and 
in 1852 was Grand Master of the Grand Lodge of Texas, and 
has prepared a work entitled "Texas Masonic Jurispru- 
dence," which has passed through two editions ; the first in 
1879, and the second in 1882. 

These works are of the greatest utility. They are in 
general use throughout the State, and are considered the 
standard authority upon the various subjects of which they 
treat. He is personally a great favorite with the courts and 
the bar of the State. His frank, open and amiable charac- 
ter, his brilliant talents and legal accomplishments, render 
him an ornament to his profession, and he is esteemed and 
loved by his neighbors and frienda. 



440 B£2!iCH AND £AK OF TEXAS. 



Nathan G. Shelley. 



Nathan George Shelley was born in Hawkins County, 
Tennessee, on the 20th of February, 1825. His father was 
a brick mason, and, in search of labor, moved his family to 
Talladega County, Alabama, while Nathan was a boy. 

The educational advantages of N. G. Shelley, were due 
to his own exertions and were couiSned to such opportuni- 
ties as intervened while laboring with his father as a brick 
mason. His time thus alternated between mental and 
physical labor until he reached the age of sixteen years, 
when having saved some means allowed him for his labor, 
he entered Emory and Henry College, in Virginia, in 1841, 
and remained there one year, when it became necessary 
for him to return to his home and resume the pursuit of 
his trade to relieve the necessities of his family occasioned 
by the financial embarrassment of his father. He immedi- 
ately took charge of his father's business, and while thus 
shouldering the responsibilities of the family he began the 
study of law under the tuition of Messrs. Chilton & Rice, 
both of whom have since that time held the office of chief 
justice of the State. But in 1846 he imbibed the patriotic 
spirit excited by the Mexican war, and having heard of the 
battles of Palo Alto and Resaca de le Palma, he left his 
studies and enlisted for the war as a private soldier in a 
company organized and commanded by his uncle. Captain 
Jacob D. Shelley, and served the time for which he had 
enlisted. 

At the termination of the Mexican war he returned to 
his home in feeble health and without means, and accepted 
employment for a season as a clerk in a wholesale grocery 
store. He afterwards, in order to obtain means to pur- 



NATHAN G. SHELLEY. 441 

sue the study of law, served as deputy clerk of the Circuit 
Court. 

In 1849 he received his license to practice from the Cir- 
cuit Court at Talladega, and, in connection with such 
practice as he could obtain, took charge of the editorial 
department of the Alabama Reporter., a newspaper pub- 
lished at Talladega, and during the two years he was con- 
nected with that journal gained considerable reputation 
as a terse and forcible writer, and exerted a recognized 
influence in the arena of politics. 

In 1851 he was elected to represent his county in the 
Legislature of the State, and was re-elected in 1853. In 
this capacity his intellectual and physical energies had a 
broader and more prominent scope, and he promoted the 
interests of his constituency in a manner which gave the 
highest satisfaction and gained for him both patronage and 
popularity. 

In consequence of failing health he spent the winter of 
1854 in Texas, and was so much benefited by the climate 
that he determined to seek a home in the State, and in 1855 
removed to Austin, where he still resides. 

In 1856 he formed a copartnership with W. H. D. Car- 
rington, Esq., which continued until the civil war, and his 
practice constantly increased as his abilities and energies 
became known to the people. 

" In 1861 he was chosen to represent Travis County in the 
Legislature, and in 1862 was elected attorney-general of 
Texas, and held that office more than a year after his term had 
expired, in consequence of the declination of his successor 
to qualify. During this time he was sent by the Governor 
of Texas to Richmond to adjust the accounts of the State 
with the Confederate government for frontier service, 
and on his return connected himself with the command of 
his brother, and was with the army of Gen. Joseph E. 
Johnson in the campaign from Dalton to Atlanta. The ob- 
ject of his mission was accomplished with ability and fidelity, 
and in a manner satisfactory to all parties. 

During the war he was made brio-adier-general of Texas 
State troops, and his services everywhere were rendered 



442 BENCH AND BAR OF TEXAS. 

with zeal and efficiency ; and his devotion to the cause which 
he had espoused never wavered, nor did his spirit wane 
so long as there was any hope of its success. But when the 
curtain closed over the scene, he yielded complacently to the 
just demands of the result, and was content with the pos- 
session of honor. 

At the close of the war he returned to the practice of his 
profession, and formed a copartnership with Judge George 
F. Moore, which continued until the latter was again 
elected to the Supreme bench ; and when Judge Moore was 
removed by military authority their copartnership was re- 
sumed and continued until the latter was elected the third 
time to the bench of the Supreme Court. He afterwards 
formed a copartnership with Judge John Hancock, which 
still exists. 

General Shelley is a lawyer of fine ability, and a man of 
the sternest integrity. He possesses a profound knowledge 
of law, and his powers of research are acute and indefati- 
gable. He is true and faithful to his clients, and a man of 
exemplary character in all the relations of life. His men- 
tal vigor, accurate judgment, and intense application render 
him a safe counselor, and he has been eminenty successful 
in all the branches of the profession. He has been engaged 
in many important cages, and in many involving questions 
of first importance in the jurisprudence of the State, among 
which may be mentioned the following: — 

Fisk V. Miller, 20 Texas, 572, which was a suit for injunc- 
tion, and to obtain a second action for defendant, as allowed 
plaintiff in trespass to try title by statute. Held, that the 
right of a second suit was not given to defendant. 

Mitchell V. Burdett, 22 Texas, 633. Defendant must 
show the incidents of ownership as specified in the statute, 
and all these continued in connection for the full period of 
five years, to maintain the plea of limitation. 

Dorn V. Dunham, 24 Texas, 366. This case involved 
the question of possession in good faith by one who pur- 
chased of a tenant in common a specified portion of the 
common estate. 

Green v. Bank, 24 Texas, 508-522. 



NATHAN G. SHELLEY. 443 

Houston, Top. & B. E. E. Co. v. Eandolph, Treasurer, 
24 Texas, 317. Establishing a rule upon the subject of man- 
damus. 

Befry et al. v. Shuler, 25 Texas, 140, 143. The rule under 
the statute giving effect to appeal and writ of error bonds 
as judgment liens from the date of execution. 

Ex parte F. H. Coupland, 26 Texas, 386. This case in- 
volved the question of the constitutionality of the Conscript 
Act of the Confederate States Congress. He was attorney- 
general at the time. 

('herry v. Speight, 28 Texas, 503. This was a suit upon 
a judgment in favor of an administrator of an estate in Mis- 
sissippi to enforce payment out of assets brought to Texas, 
in the hands of the administrator of the judgment debtor 
who died after judgment in Mississippi. 



444 BENCH AND BAR OF TEXAS. 



RICHARD B. HUBBARD. 



Eichard Bennett Hubbard, minister of the United States 
to the Japanese Empire, was born in Walton County, 
Georgia, in the year 1834. He enjoyed excellent early 
advantages and graduated with honor at Mercer Univer- 
sity in 1851. Having afterwards attended a course of law 
lectures in the University of Virginia he graduated in the 
law department of Harvard College in 1852, and soon after- 
wards removed to Texas and located in Tyler, where he 
entered upon the practice of his profession and has since 
continued to reside. He was a young man of amiable dis- 
position and exceedingly popular manners, which, with his 
fine talents, introduced him at once to public notice and 
favor, and his professional advancement was rapid aud con- 
tinuous. But his patriotic and beneficent traits of character 
naturally inclined him to the field of politics and in 1855 
he relinquished a large a lucrative practice and entered upon 
the canvass of the State in the interest of the Democratic 
party against the Know-Nothing organization. The earn- 
estness of his manner and the brilliancy of his oratory 
fascinated the people and his services were of decided and 
enduring value to his party. 

In 1852 he was sent as a delegate to the convention at 
Cincinnati, which nominated Mr. Buchanan for the Presi- 
dency and at the request of many leading Democrats can- 
vassed Texas in advocacy of his election. Through the 
influence of General Rusk and J. Pinckney Henderson, who 
were impressed with his ability and usefulness, he was ap_ 
pointed by Mr. Buchanan United States attorney for the 
Western District of Texas, and discharged the duties of 
that office with distinguished efficiency until 1858, when he 
resigned it and was chosen to represent his county in the 



RICHARD B. HUBBAKD. 445 

Legislature, in which his services were again conspicuous. 
In 1860 he was elected one of the delegates from Texas to 
the Charleston Convention, in which he was an ardent sup- 
porter of Breckinridge and Lane, and exerted all his powers 
to secure their election in the heated contest of the cam- 
paign w^hich ensued. 

Mr. Hubbard was deeply imbued with the principles which 
actuated the Southern people in their withdrawal from the 
Union. The sentiments which prompted their action in- 
spired his political faith and he stepped boldly into the cur- 
rent of events which flowed from it. He favored secession 
as the only means for the accomplishment of what he con- 
ceived to be a righteous end, and when hostilities began he 
raised and commanded the Twenty-second Eegiment of Texas 
infantry and served in the field until the close of the war. 
He then returned to Texas and devoted himself to agricul- 
tural pursuits on his farm in Smith County, until his politi- 
cal disabilities were removed, when he assumed his practice 
and has since devoted himself almost exclusively to his 
profession. 

He was chosen by the Democratic Convention of 1872 
one of the electors for the State at large on the Greeley 
ticket, and by his eloquence and energy contributed largely 
to the majorit}^ which Texas gave to that candidate. In 
1874, he was the president of the Democratic State Con- 
vention Avhich assemble at Austin, and was made chairman 
of the State executive committee. He was also a promi- 
nent candidate for the nomination for Governor, having re- 
ceived the next highest vote to that which nominated 
Governor Coke, and was afterwards declared to be the 
unanimous choice of the convention for the office of Lieu- 
tenant-Governor, to which he was elected by over fifty 
thousand majority. By virtue of this office he presided 
over the Senate of the Fourteenth Legislature, and his 
presidency of that body was characterized by a fairness, 
fidelity and ability which gave full satisfaction to the mem- 
bers and elicited the highest praise of the people. The 
new Constitution of 1875 vacated all the offices of the 
State, and in the following convention at Galveston he was 



446 BENCH AND BAR OF TEXAS. 

re-nominated for Lieutenant-Governor by acclamation and 
was re-elected by more than a hundred thousand majority 
of the popular vote. 

In December, 1876, he was elected to the gubernatorial 
chair in consequence of the election of Governor Coke to a 
seat in the United States Senate, and his administration is 
noted for being one of the most efficient and felicitous in 
the history of the State. The protection he afforded to 
the inhabitants of the frontier, his stern and energetic sup- 
pression of crime produced a feeling of safety which drew 
many immigrants to the State, and set in motion a flowing 
tide of prosperity. The measures of reform, which he 
especially advised in regard to public economy and finance, 
are characterized by the highest order of wisdom and fore- 
sight, and infused ar-healthful spirit into public polity. 

His recommendations in regard to the funding of pen- 
sion bonds, the transportation of prisoners, the lease of 
convicts, the limitation of official perquisites and the dis- 
position of the public school lands, have been for the most 
part adopted by the laws of the State. But he was not in 
favor of a policy of false economy. While he advised the 
retrenchment of public expenditures within the means of 
the State to pay promptly and with honor, he advocated an 
enlightened and liberal statesmanship, which would " not 
by miserly compensations" drive the ablest judges from the 
bench, the most faithful clerks from their desks, and the 
soldiers from their frontier posts, and he favored the 
bestowal upon the institutions of charity, the colleges, uni- 
versities and free schools of Texas an intelligent liberality 
worthy of its dignity and the civilization of the age. Re- 
fering to the merits and defects of the new Constitution, in 
his retirino; messaoje in 1879, he said: — 

" A final report from the retiring executive at this time 
would be incomplete in the absence of any allusion to our 
organic law and a statement of its practical operations 
during the period which has elapsed since it went into effect. 
Adopted by a very decided majority of our voting people, 
there were still serious misgivings on the part of many who 
gave their sanction to it at the polls that some of its novel 



RICHARD B. HUBBARD. 447 

and untried provisions would prove impracticable, and that 
the many restrictions thrown aromid the practical machin- 
ery of the State would, in the end, seriously embarrass the 
government and produce confusion in its administration. 
But looking back now at our recently past history and re- 
viewing the diflSculties which have presented themselves and 
those which we have surmounted, it is ascertained beyond 
question that the fears of a respectable minority of our 
people were not well founded and that our organic law, 
although still imperfect .in some of its details, has demon- 
strated its excellence by practical experience and operation, 
and should not be idly displaced and tampered with. Under 
its salutary effect the accumulation of public indebtedness 
has been wholly curtailed, the outstanding debts of many 
counties have been extinguished, the annoyance and expense 
of special litigation have been almost altogether abolished, 
the public revenues of the State have been better collected, 
crime has been more thoroughly detected and punished, and 
the dockets of many of our inferior courts have been cleared 
of their accumulations and speedy justice administered 
between litigants in accordance with the behest of our Bill 
of Rights. 

" Some of these blessings might have been possible of ac- 
complishment under former systems, but for a majority of 
them we are indebted to our present Constitution. It could 
not be expected that it would prove wholly good, coming, 
as it did, from human hands, but in approaching the delicate 
task of its amendment, we should be mindful of the good 
developed in it and take care to hold fast to that, while reach- 
ing out for the attainment of additional excellence and the 
correction of manifest defects. In principle, an organic law 
should be seldom interfered with by legislation, but should 
remain fixed and stable, to be studied and understood by . 
the people, with the aid of constantly recurring expositions 
from our highest courts and wisest judges. Frequent 
changes tend to beget a spirit of unrest and to induce a 
want of respect for that which has become the key-stone of 
American republicanism. A fixed written Constitution for 
each State and the nation, constitutes the distinguishing 



448 BENCH AND BAR OF TEXAS. 

characteristic of our system of republican government, and 
the corner-stone of our future hopes as a people. Let us 
not so act as to educate our people to look for constant 
chansre at each recurrino; session of the Legislature, but at 
the same time let us not flinch from the responsibility of 
proposing such corrections as the necessities of the State 
imperatively demand at our hands. 

"From careful observation, it occurs to me that the chief 
defect in our present Constitution arises from the inade- 
quate machinery provided by it for the dispatch of litiga- 
tion when appealed to our higher courts. The overcrowded 
state of our appellate dockets was appreciated by the con- 
vention which framed the constitution, and steps were 
taken by that body to provide adequate relief therefor, by 
the creation of a Court of Appeals, and vesting it with ju- 
risdiction over appeals in all criminal cases. This action, 
it was thought, would afford sufficient relief to the dockets 
of our Supreme Court to enable that tribunal to dispatch 
all civil business then standing upon the dockets, and also 
new business that might come before it. A limited expe- 
rience of scarce three years has disappointed our just expec- 
tations and demonstrated the urgent necessity for further 
relief. Notwithstandins; the division of labor so inaugu- 
rated, our Sui)reme Court is further behind in its business 
than at the date of the adoption of the Constitution ; and 
the Court of Appeals which, the first year of its existence, 
kept even pace with the business upon its dockets, since 
the expiration of that time has found itself unable to dis- 
patch appeals as fast as they accumulate, and as a conse- 
quence, its dockets at Austin and Galveston, and especially 
at the former place, show a large accumulation of cases 
undisposed of and awaiting action. No candid citi- 
zen who has had an opportunity for observing the amount 
of labor performed by the judges composing the two courts 
will hesitate to attribute this lamentable condition of af- 
fairs to the inadequacy of the system, and not to the dere- 
liction of the individuals composing the two courts. Of 
all the public servants of the State, none are compelled to 
perform such ceaseless labor as they ; and it is due to them, 



RICHARD B. HUBBARD. 449 

in a lesser measure, as well as to the public interest in a 
greater, that machinery fully adequate to the speedy dis- 
patch of business be provided without delay, by prelimi- 
nary suggestions of the Legislature and ratification by the 
people. In the multiplicity of the theories for relief, and 
the almost universal conflict of opinion thereon, I can not 
hope that any suggestions I may make upon the subject 
will escape hostile criticism, or commend itself to the judg- 
ment of even a majority of your honorable bodies, but my 
purpose will be fully effected by drawing your early atten- 
tion to this most serious grievance, leaving you in your 
combined wisdom to adopt some measure that will afford 
immediate and effective relief to the people of the State; 
for they are the sufferers from this condition of things. 
Nor can I be expected to do more than convey a general 
outline of my impressions in a communication like this, 
without attempting any discussion or going into detail, 

" The Court of Appeals has demonstrated its capacity to 
dispatch all appeals of a criminal nature, and I can see no 
reason why their jurisdiction should not be limited exclu- 
sively to that character of business. It is most important 
to the State and to every citizen, financially as well as 
morally, that our judicial machinery for the suppression 
and punishment of crime should be fully adequate to our 
necessities, and in case of conviction, as little delay as pos- 
sible should occur in the decision of appeals taken therein. 
The certainty and celerity of punishment is the most im- 
portant factor in the suppression of crime, and as by ex- 
perience we have ascertained that the disposal of appeals 
in criminal cases will occupy the full time of the court, 
sound policy would seem to dictate that it should be re- 
lieved of its civil jurisdiction in the former class of cases, 
rather than we should embark upon further experiments, 
by its abolition or consolidation with other tribunals. 
With the consolidation of all civil business in the Supreme 
Court, the danger of conflict in decisions is greatly de- 
creased, if not altogether dissipated, and the main argu- 
ment against separate tribunals is met and answered. 

*♦ Whatever reform may secure the approval of 30 ur hoji- 

29 



450 BENCH AND BAR OF TEXAS. 

orable bodies, I must be pardoned for reminding you that 
the vast extent and varied interests of our State, and the 
immense population, present and prospective, within its 
borders, demand a judicial system of no ordinary charac- 
ter, and that a system suited to small States, or to ours in 
its infancy, will not suffice for us now. Two millions of 
people can not have their rights adjudicated by a judicial 
machinery provided for and adapted to the wants of three 
hundred thousand; and in applying a remedy to these de- 
fects, let us not sacrifice efficiency for the sake of false 
economy, but let us rather preserve the methods of a true 
economy by providing courts in which ' every person, for 
an injury done him, in his lands, goods, person, or reputa- 
tion, shall have remedy by due course of law.' " 

The administration of Gov. Hubbard gave satisfaction to 
all classes of people, and at the Democratic nominating 
convention of 1878, before which he was not a candidate, 
he received the unmistakable assurance of popular favor 
expressed in the following resolution introduced by Judge 
Thomas J. Devine, and adopted with but two dissenting 
votes: — 

'< Resolved, That it is the sense of this convention that 
the administration of Gov. Hubbard has been eminently 
wise and just, and that he deserves the unqualified appro- 
bation of the people of Texas." 

In 1876 Gov. Hubbard delivered a Centennial oration 
which was extensively published, both in this country and 
in Europe, and has been, no doubt, the means of inducing 
many people to emigrate to Texas. He appeared in 1879 
before the Merchant's Exchange of St. Louis, and pre- 
sented the inducements which Texas offered to the capital- 
ists of that city for the investment of their means, and 
succeeded in eno-ao-ino- them to build the Grand Trunk 
Narrow Gauge Railroad from Texarkana to the Rio Grande, 
for which he has been the general attorney. 

In 1884 he was sent as a delegate to the convention at 
Chicago which nominated Mr. Cleveland for the Presidency, 
and was chosen temporary chairman of that assembly, in 
which the dignity of his bearing and the urbanity of his 



RICHARD B. HUBBARD. 451 

manners gained for him great respect and admiration. 
His portly appearance was accepted as typical of the 
grandeur of the event, and as auspicious of the magnitude 
of its result. It is an inherent element in the human 
mind, which can not be entirely eradicated by culture and 
experience, to associate great deeds and eminent qualities 
with a powerful physical organization, and when we are re- 
minded that the mighty Achilles, after slaying the great 
Hector, succumbed to the comparatively feeble javelin of 
Paris, and that the fragile sling of David was more effective 
than the ponderous beam of Goliah, we are disposed to 
refer it to the miraculous. V/hether it may be ascribed to 
a state of mind kindred to that produced by sublimity, or 
to some subtle mesmeric agency, it is certain that a portly 
physical aspect and stentorian tone of voice, when there is 
no apparent effort to daunt or overawe, add greatly to the 
force of an orator and advocate; and when these are really 
combined with great powers of intellect the pre-eminence 
is complete. 

Governor Hubbard possesses a large and vigorous mind 
as well as a huge physical form, and as an orator he has 
received the sobriquet of " the Demosthenes of Texas." 
He possesses in a high degree the power of feeling and 
making others feel an appreciation of the sentiment, " Si 
vis mejiere, primum dolendum est tibi,''^ the eloquence of 
[)assioii. " The highest order of eloquence," says Mr. 
Blair, " is always the offspring of passion. A man may 
persuade others to act, by mere reason and argument ; but 
that degree of eloquence which gains the admiration of man- 
kind and properly constitutes an orator, is never found 
without warmth or passion. * Passion, when in such degree 
as to arouse and enkindle the mind without throwing; it out 
of the possession of itself, is universally found to exalt all 
the human powers. It renders the mind infinitely more en- 
lightened, more penetrating, more vigorous and masterly, 
than in its calmer moments. A man actufited by a strong 
passion becomes much greater than he is at other times ; he 
is conscious of more strenirth and force, he utters sreater 
sentiments, conceives higher designs, and executes them 



452 BENCH AND BAR OF TEXAS. 

with a boldness and felicity of which, on other occasions, 
he would think himself entirely incapable." 

But to awaken this passion described by Mr. Blair there 
must be some inspiring influence, some ruling motive, This 
may be, as it often is, a selfish ambition or a desire of ap- 
plause, or it may arise from the softer emotions of the 
heart, or from a spirit of patriotism in which are blended 
all the noblest sentiments of humanity. To this last we may 
ascribe the inspirations which characterize the best eloquence 
of Governor Hubbard. 

During the presidential campaign of 1884, at the request of 
the Democratic National Committee, he canvassed the State 
of Indiana for the election of Cleveland and Hendricks, and 
his visit was everywhere received with the greatest appreci- 
ation and applause. His imposing personal appearance, 
fine powers of oratory, placid manners, and flow of humor 
enlisted the good will of the people for himself and his sec- 
tion as well iis for his cause, and his services and ability 
have been recognized in his recent appointment as Envoy 
Extraordinary and Minister Plenipotentiary of the United 
States to the empire of Japan. 

Ex-Governor Hubbard has been twice married. His first 
wife was Miss Eliza Hudson, daughter of a distinguished 
physician of Lafayette, Alabama, and his second one was 
Miss Janie Roberts, of Smith County, Texas ; a lady whose 
charming grace and winning manners have added to the 
popularity and success of her husband. 



A. J. PEELER. 453 



A. J. PEELER. 



The subject of this sketch, one of the most eminent 
members of the bar of Texas, was born in Harris County, 
Georgia, on the 22(1 of April, 1838. When he was about 
ten years of age he immigrated with his father's family to 
Florida, where he resided until the spring of 1873 when he 
removed to Texas. His educational advantages were good, 
and before he had attained the age of majority he was ad- 
mitted by a special act of the Legislature of Florida to 
practice law in all the courts of that State. He received 
his license from the Circuit Court at Tallahassee, the capital 
of the State, in 1857, and entered at once upon the prac- 
tice of his profession at Newport, a small town about 
twenty miles from the capital. He remained there about 
two years and was then elected clerk of the Supreme Court, 
an office at that time of considerable importance, and which 
under the Constitution was required to be filled by joint 
ballot of the two Houses of the Legislature. He continued 
in this office, and at the same time attended to such prac- 
tice as he could obtain until the outbreak of the war be- 
tween the States, when he immediately entered the army 
and served first under General Bragg at Pensacola and 
afterwards under General Lee in Virginia until the battle 
of Gettysburg, in which he was wounded and taken pris- 
oner. At the time of his capture he was first lieutenant in 
Company I of the Fifth Regiment of Florida Infantry, 
and had served for a long time as adjutant of that regi- 
ment. For several days previous to the battle he acted as 
aide-de-camp to Colonel Lang, who was in command of the 
Florida brigade. On the second day of the battle, and just 
before the order to charge was given, Lieutenant Peeler, 
who was mounted, was sent to bring forward some men who 



454 BENCH AND BAR OF TEXAS. 

had been stationed a short distance from the main line of 
battle. He returned with them just as the charge was 
begun, in which he joined and went through the fight on 
horseback until he was wounded, being the only mounted 
officer of the command. Of his gallantry on that occasion 
and also at the battle of Chancellorsville much was said by 
his comrades and the newspapers of the time. Having re- 
mained more than a month at Camp Letterman hospital, 
which was established near the battle-field, and afterwards a 
short time at the West's Building hospital in Baltim(n-e, he 
was sent with a large number of other Confederate officers to 
Johnson's Island, in Lake Erie, where he was confined as a 
prisoner of war until a short time before the surrender of 
General Lee at Appomattox. Besides the battles of Chan- 
cellorsville and Gettysburg he participated in the battle of 
Fredericksburg and other fights in the hard fought fields 
of Virginia. 

On being released from prison he returned to his home 
in Tallahassee, resumed his profession and engaged quietly 
but vigorously in the great struggle which was now common 
to all the Southern people — to procure meat and bread for 
themselves and families. He did not possess a cent, but 
was soon afterwards fortunate enough to be employed in 
the defense of a quartermaster of the United States army, 
who was being tried by a court-martial. And it is a singu- 
lar incident that an ex-Confederate officer, with even the 
Confederate buttons upon his worn and tattered coat, which 
under military orders were required to be covered, should 
have earned his first fee in appearing before the handsomely 
uniformed officers of the United States army and in repre- 
senting an officer of that army. A dollar in greenbacks 
seemed then to be a fortune, and he counted several 
hundred of them for his fee in this case, and says that he 
never felt so rich in his life. In quick succession he ap- 
peared in various important cases before military commis- 
sions. The determination of all controversies, for a while, 
even those involving the life and liberty of the people of 
the South, rested with these tribunals, and his services were 
valuable to his countrymen. 



A. J. PEELER. 455 

When the convention to form a State Constitution under 
President Johnson's scheme of reconstruction was called, 
Mr. Peeler was made Secretary of that body, and to him 
the convention confided the duty of arranging and publish- 
ing the Constitution. Upon the adjournment of the con- 
vention he was appointed by Provisional Governor Marvin 
with the Hon. Chas. H. Dupont, ex-chief justice of the 
Supreme Court, and the Hon. M. D. Papy, ex-attorney- 
general, to report a revision of all the laws of the State to 
the first Legislature to be held under the new Constitution — 
the object of the revision being to adapt the laws to the 
changed condition of things, brought about by the abolition 
of slavery, etc. Mr. Peeler was elected a member of this 
Legislature, and the fact that he had been a member of 
this commission and that the greater part of the labor of 
the Legislature was devoted to the ^consideration of the 
matters covered by its report, and with which he was nec- 
essarily more familiar than any other member of the body, 
gave to him a special prominence in its deliberations. 
Though always afterwards taking an active interest in the 
political affairs of the State, from 1866 u^d to the time of his 
removal to Texas, he declined to be a candidate for any other 
political place, devoting himself exclusively to his practice, 
which constantly increased, both in number and importance 
of the cases. He was a delegate to the first National Demo- 
cratic Convention after the war, held in Tammany Hall, in 
New York, in 1868, and regularly attended as a delegate all 
the State Conventions, besides discharging the full measure 
of his duty upon the stump whenever called upon, beino- 
always, and at all times and under all circumstances, a 
staunch Democrat. For several years before Mr. Peeler 
i-emoved to Texas he represented, in connection with his 
partner, the Hon. M. D. Papy, the Jacksonville, Pensacolu 
and Mobile Eailroad Company in its most important litio-a- 
tions. He also represented the Trustees of the Internal 
Improvement Fund of the State in an equity case in the 
United States Circuit Court, involving very large interests 
and presenting questions of unusual difficulty and import- 
ance. Some idea of the questions involved in this case 



456 BENCH AND BAR OF TEXAS. 

may be gathered from Vose v. Reed et al., Trustees, de- 
cided by Mr. Justice Bradley, and reported in 1 Woods, 
647, where Mr. Peeler's name appears as first among 
counsel for defendants. He also, in connection with the 
Hon. George P. Rainy, then his partner and afterwards 
attorney-general and now associate justice of the Supreme 
Court represented Governor Reed in his celebrated quo 
warranto proceedings before the Supreme Court of the 
State. The contest in this case was between Reed, the Gov- 
ernor, who had been impeached by the Senate, and Glea- 
son, the Lieutenant-Governor, who insisted that he was 
entitled to the reins of government pending the impeach- 
ment. Though the fight was a fight between the two wings of 
the Republican party, which at that time had control of the 
State, it was one to which no citizen of the State could be 
indifferent, threatening, as it did, bloodshed and anarchy, 
destructive alike to the interests of all. Though exceed- 
ing, perhaps, in feeling and excitement the celebrated 
contest between Bashford and Barstow (4 Wis. 567) for 
the governorship of Wisconsin, it resembled that case in 
many of its features. The argument of Mr. Peeler before 
the Supreme Court was given wide publicity in the papers, 
and to his effort and that of his able associate is due in 
a great measure the judgment rendered in their favor, 
which resulted in the peace and order of society which 
soon followed. An elaborate report of this case will be 
found in 12 Florida Reports, p. 190. Gleason after his defeat 
made an ineffectual attempt to carry the matter to the 
Supreme Court of the United States (Gleason v. Florida, 
9 Wall. 779). 

Notwithstanding Mr. Peeler's prominence at the bar of 
Florida and his large and valuable practice, like many 
others he grew tired of the constant turmoil and passion so 
constantly incited and maintained by the dominant party 
between the two races and determined to seek a new home. 
Austin being the capital of Texas, with Supreme and Fed- 
eral courts — courts with the practice of which Mr. Peeler 
was familiar, he determined to make it his future home, 
and where since the early part of 1873 he has resided. Mr. 



A. J. PEELER. 457 

Peeler, soon after settling in Austin, received retainers m 
several important cases, especially in the Supreme and 
Federal courts, and began at once to build up a practice. 
Messrs. W. J. Montgomery and A. S. Fisher were asso- 
ciated with him in the practice about two years, when, owing 
to the increase of business in the Supreme Court and the 
inability of the attorney-general to give it personal atten- 
tion, the Legislature from the necessities of the case, created 
the office of assistant attorney-general, and it was tendered 
to Mr. Peeler by Governor Coke. Mr. Peeler accepted and 
was the first to hold the position. His term having expired, 
he was a second time appointed by Governor Coke, and 
was in each instance up.animously confirmed by the Senate. 
At this time the Hon. George Clark was attorney-general, 
and it may be said without disparaging any of the dis- 
tinguished gentlemen who have since held these places, that 
the office of attorney-general as conducted by the Hon. 
Georo;e Clark and Mr. Peeler gave entire satisfaction to the 
courts, the bar and the people. So conspicuous were Mr. 
Peeler's services at the Tyler term of the Supreme Court in 
1875, that upon the conclusion of its labors at that place 
the following complimentary note was handed to him : — 

" Supreme Court Room 
'< Tyler, December 15, 1875. 

" Col. A. J. Peeler, Assistant Attorney -General — 

" Sir: In closino; the labors of a three months' session ot 
the Supreme Court, upon which you have attended as the 
representative of the government, we deem it proper to 
express to you our entire satisfaction at the manner in 
which you have discharged the very arduous duties devolved 
upon you and our conviction that the interest of the public 
and the citizen has alike been protected by your labors. 

'♦ O. M. Roberts, 
" R. A. Reeves, 
" George F. Moore, 
** Robert S. Gould, 
*' John Ireland." 



458 BENCH AND BAR OF TEXAS. 

An excamination of the 43, 44 and 45 Texas Reports will 
show the extent of Mr. Peeler's labors in behalf of the 
State before the Supreme Court. But perhaps the most 
important duty discharged by him while holding the office 
of assistant attorney-general was in making a thorough and 
exhaustive examination of the management of the State 
penitentiary at Huntsville and in preparing and submitting 
an elaborate report of his investigation. Under the law 
creating the office of assistant attorney -general, power was 
ofiven to the Governor to assign to this officer such duties as 
he thought proper. In the early part of 1875 the public mind 
of the State was greatly excited over newspaper reports of 
alleged mismanagement and cruel treatment of convicts by 
the lessees of the penitentiary. Governor Coke appointed 
a commission consisting of Messrs. Peeler, D. H. Triplett 
and Tillman Smith to thoroughly investigate the matter. 
The investigation was continued for some two months — 
the commissioners visiting the penitentiary, the various 
camps where convicts were stationed, and examining many 
witnesses. Upon the conclusion of their labors Mr. Peeler, 
from the large mass of material before him, prepared a 
report which was printed by the State and was used by the 
departments of the government, the Constitutional Conven- 
tion of 1876, and succeeding Legislatures as a book of ref- 
erence. Instead of submitting a mere sensational report, 
Mr. Peeler went thoroughly into the whole subject — giv- 
ing a full history of the penitentiary from its organization, 
compiling all the laws in relation to it, setting out the 
leases, giving copies of all documents and explaining the 
relation of the lessees to the State and their rights and lia- 
bilities under their contract and the management of the 
penitentiary while under their control. This report also 
contains a great deal of valuable matter collected from 
outside sources showing the policy pursued in other States 
in the discipline and treatment of convicts. No official 
report in this State, up to that time, had been more com- 
plete and exhaustive and none could have been read with 
greater interest. 

Apprehending that the State might be compelled at any 



A. J. PEELER. 459 

time to resume control of the penitentiary, Mr. Peeler, at 
the request of Governor Coke, drafted the law authorizing 
its resumption by the State, which will be found in the 
General Laws of the Fifteenth Legislature, page 193, and 
which was passed as prepared by him without any material 
change. This law afterwards made an important figure in 
the litigation between the State and the lessees. Mr. 
Peeler also, at the request of Governor Coke, drew the 
forgery law of July 28, 1876 (see General Laws, p. 59). 
The extent to which land forgeries were being committed 
at that time and the boldness of the perpetrators of 
these frauds, both within and without the State, was an 
overshadowing evil — one, in the suppression of which 
prompt and severe measures were required. Mr. Peeler 
was engaged several weeks in the preparation of this law, 
carefully examining the forgery statutes of the United 
States and of other States and Territories in the Union. 
No law could be drawn with more exact regard to every 
conceivable detail in this class of crime. And through this 
law forgeries of land titles in Texas were so completely 
crushed that it is a rare thing now to find a forgery case 
upon the criminal docket. The able commissioners who 
prepared the present revision of the laws of Texas thinking 
this subject perhaps sufficiently covered by the more gen- 
eral provisions of the criminal code, omitted the law pre- 
jiared by Mr. Peeler, but the Legislature being unwilling to 
take the chances of dispensing with a law which had accom- 
plished such useful results, restored it in totidem verbis, 
and it so stands on the statute book. It has often been 
discussed by the Court of Appeals, and though furiously 
assailed, upon constitutional and many other grounds, it 
has been sustained ; and it may be said that no single act 
of legislation affecting the criminal jurisprudence of the 
State has occupied a more prominent place than this law. 

With the view of devoting himsalf exclusively to his pro- 
fession, Mr. Peeler resigned the office of assistant attorney- 
general in October, 1876. Governor Coke, in accepting 
his resignation, which he stated he did with extreme 
regret, said : " The rare ability and great labor and learn- 



4(30 BENCH AND BAR OF TEXAS. 

nag which has distinguished your administration in the at- 
torney-general's office, and your honest fidelity to all the 
interests of the State under your official care, entitle you 
eminently to the plaudit ' well done,' so grateful to the 
conscientious public servant. I take great pleasure in tes- 
tifying to the thoroughness, watchfulness and skill which 
has characterized the discharge of your duties, and you" 
great efficiency as a public officer." 

Attorney-General Boone, in a communication to Mr. 
Peeler touchino; his resiijnation, uses this language : " I 
would be doing injustice to you and a grosser injustice to 
my own sense of honor were I not frankly and cheerfully 
to acknowledge that your counsel and assistance have been 
to me invaluable. I have always found you ready, willing 
and able, conscientious and zealous in the discharge of your 
official duties and as jealous of the reputation of the Attor- 
ney-General's Department as of your own. I regret your 
resignation and feel that the State has lost a faithful, able, 
and efficient officer, and I, an assistant to whom I am in- 
debted in a very large measure for whatever of success with 
which the duties of this department have been discharged 
since I became its chief officer. I add with the greatest 
pleasure that you have always been kind and courteous ; and 
our association, official and personal, has been to me most 
pleasant and agreeable." And among other complimentary 
notices from the press, the Galveston News said: " Those 
Avho have been conversant with the laborious and difficult 
duties of the office of the assistant attorney-general under 
the administration of Governor Coke, and the efficiency with 
which they have been discharged by Col. A. J. Peeler, will 
note with regret his resignation. An able and studious 
lawyer, a cultivated scholar, a conscientious and valuable 
public servant, as Col. Peeler proved himself to be, will not 
be permitted to withdraw himself from the public service 
without a proper recognition of his eminent usefulness. A 
professional man of such merit is not often appreciated by 
his political superiors, but the public will recognize him 
according to his worth." 

Governor Hubbard, who succeeded Governor Coke, upon 



A. J. PEELER. 461 

the election of the latter to the United States Senate, deter- 
mined, under the authority given by the act above mentioned, 
to resume control of the penitentiary. To resist this move- 
ment on the part of the State, Messrs. Ward, Dewey and 
Patton, the lessees, employed able counsel, Messrs. Han- 
cock & West, representing Ward and Dewey and ex-Gov. 
E. J. Davis representing Patton, The difficulties, to say 
nothing of the magnitude of the interest involved, which con- 
fronted Gov. Hubbard in attempting this resumption were 
very considerable. Mr. Peeler having necessaril}^ given much 
attention to the subject, while assistant attorney-general, 
was at once engaged to represent the State in the matter. 
It was under his advice and upon papers prepared by him 
that the Governor proceeded at every step in this important 
matter. To avoid, as far as practicable, the question of the 
right on the part of the State to seize the penitentiary and 
convicts against the wishes of the lessees, Mr. Peeler pre- 
pared the correspondence between the Governor and the 
lessees, in which the right of the State at a certain time to 
peaceably take control was conceded. The Hon. C. S. 
West, now of the Supreme bench, representing the lessees 
and Mr. Peeler representing the State, visited the peniten- 
tiary at the time of the resumption in April, 1877, for 
the purpose of advising as to the manner in which it 
was to be effected, and the property turned over, etc. 
Many questions of importance and difficulty had to be set- 
tled, notably the manner of taking the inventory and 
appraisement of the property — the State desiring on the 
one hand to incur no liabilit}^ and pay no higher price for 
the property than under the law and contract of lease it was 
bound to pay, and the lessees who had erected buildings, 
added machinery and accumulated a large amount of prop- 
erty, desiring to have the same taken back by the State 
upon the most favorable terms to them. Patton, one of the 
lessees, protested against the right of the State to resume con- 
trol. The inventory and account being completed, showed 
as claimed by the State, a balance due to it of some $72,000. 
Ward, Dewe}^ & Patton recognizing no such indebtedness, 
claimed that the State was indebted to them in a very large 



462 BENCH AND BAR OF TEXAS. 

amount. Under the resumption law, the lessees, if not sat- 
isfied with the appraisement, were authorized to sue the 
State. As they declined to do this, Gov. Hubbard, after 
advising with Attorney-General Boone and Mr. Peeler, con- 
cluded to sue the lessees for the recovery of this alleged 
balance, deeming it best to have the matter settled by judi- 
cial determination than to leave it open to constant appeals 
for legislative relief. For this purpose he employed Mr. 
Peeler and his partner, T. S. Maxey, Esq., to institute suit. 
Suit was brought in the District Court of Travis County 
aofainst the lessees and their bondsmen. The labor of tho 
preparation of this suit and of the defense can hardly bo 
overestimated. Several inventories consisting of hundreds 
of pages, with a vast mass of documentary testimony had to 
be examined with great care. Ward, Dewey & Patton, re- 
presented by the able counsel above mentioned, interposed 
every defense which could be made, and sought by way of 
reconvention to recover a judgment against the State for 
somethins: like a half a million of dollars. A. S. Walker, 
judge of the Travis District Court, having at one time been 
of counsel for Ward, Dewey & Patton, being disqualified, 
J. H. Burts, Esq., now assistant attorney-general, was ap- 
pointed special judge. The case was tried before a jury and 
occupied two entire weeks, each day's labor beginning early 
in the morning and ending late at night. Every inch of the 
ground was stubbornly contested, and few cases have re- 
ceived so large a share of public attention. The responsibil- 
ity and anxiety of the counsel for the State, when a judgment 
for so large an amount was sought against it, can be readily 
appreciated. Hon. A. T. McKinney, of Huntsville, who 
had also been retained by Gov. Hubbard in the matter of re- 
sumption, assisted Mr. Peeler in the trial of the case. The 
trial resulted in a verdict for the State in the sum of $15,000. 
The lessees carried the case to the Supreme Court, in which 
Mr. Peeler represented the State, and the judgment of the 
court below was affirmed. Thus ended one of the most 
important and difficult suits, perhaps, ever tried in any Dis- 
trict Court in the State. 

Mr. Peeler, by special retainer, in conjunction with his 



A. J. PEELER. 463 

former partner, S. R. Fisher, Esq., had previously repre- 
sented the State in the Supreme Court, in what is generally 
known as the '* Rio Grande Cases," brought under the act to 
adjndicate claims to lands situated between the Nueces and 
Rio Grande Rivers. The case of the State v. Cardinas, and 
other cases to be found in 47 Texas, show the nature of the 
questions and the extent of the interests involved in these 
suits. But the most important case with which Mr. Peeler 
has ever been connected, and one which stands almost un- 
precedented in the jurisprudence of the country, is what is 
known as the " Mercer Colony Case." The following com- 
munication from Mr. Peeler to the Governor of the State, 
together with the letters accompanying it, presents as suc- 
cinctly as possible the history of this most remarkable liti- 
gation : — 

" Law Office, Austin, Texas, February 2, 1885. 

*' To His Excellency John Ireland, Governor of Texas — 

"Sir: Having been retained by your predecessor to 
represent the State of Texas in what is generally known as 
the < Mercer Colony Case,' I now have the honor to report 
to you the final disposition made of said cause; and in 
making this report it will be proper, as I have not been 
fully paid for my services, to give a brief history of the 
case that the nature and extent of such services may be 
understood. 

"The suit grows out of a colony contract between the 
Republic of Texas and General Mercer, made January 29, 
1844. This contract was the leading subject of debate in 
the Constitutional Convention of 1845. The original bill 
was filed March 6, 1875, in the United States Circuit Court, 
at Austin, by George Hancock, a citizen of Kentucky, who 
claimed as chief trustee to represent the rights of Mercer 
and associates against J. J. Gross, Commissioner of the 
General Land Office of Texas. Upon the death of Hancock, 
General William Preston became complainant, and William 
C. Walsh, succeeding Gross as Commissioner, was made 
defendant. 

"It was claimed in the original bill that Mercer and 



464 BENCH AND BAR OF TEXAS. 

associates had introduced and actually settled under said 
colony contract 1,256 emigrant families, for which the}' 
were entitled to 1,256 sections of 640 acres each, being 
one section for each family, and in addition thereto 120 
sections, being ten premium sections for each one hundred 
families, making in all 1,376 sections or 880,640 acres of 
land. 

" The nature of the relief sought by this bill is disclosed by 
an order for an interlocutory injunction granted April 12, 
1879, as follows: — 

" ' That a writ of injunction do issue out of this court, 
and under the seal thereof, directed to W. C. Walsh, Com- 
missioner of the General Land Office of the State of Texas, 
his clerks, draftsmen, subordinates, agents, servants, and 
employes, and all his successors in office, and all their 
clerks, draftsmen, subordinates, agents, servants, and em- 
ployes, and all officers or agents subordinate to him, or 
to any of his successors in office, or under the direction, 
supervision or control of him, or of any of his successor or 
successors in office, enjoining him and them, and each and 
every of them, from issuing or delivering, or causing to be 
issued or delivered, or permitting to be issued or delivered, 
to any person or persons or corporation any plat or plats 
with a view of making locations within said colony limits, 
certificate or certificates, patent or patents, for any lands or 
land within the boundaries of Mercer's colony, as set forth 
in the bill of complaint and the exhibits therewith filed, and 
therein defined, and from any further interference with or 
infringement of the land grant or land reservation known 
as Mercer's colony, and from doing or causing to be done 
any act or thing whereby there may issue any patent, cer- 
tificate, plat or grant of any lands within the boundaries of 
said Mercer's colony, as defined and set forth in the said 
bill of complaint and exhibits therewith filed, and as set 
forth in the copy of the contract made on the twentj'-ninth 
January, 1844, by and between the Republic of Texas, by 
Sam Houston, President thereof, and Charles Fenton Mer- 
cer, filed herein, whereof the original is on file in the office 
of the Secretary of State of the State of Texas, and a copy 



A. J. PEELER. 465 

is on file in the office of the Commissioner of the General 
Land Office of the State of Texas, except to the complain- 
ant, William Preston, until the final hearing of the case.' 

" The injunction was granted by Judge Woods, then cir- 
cuit Judge, and now on the Supreme Bench of the United 
States. His opinion delivered at the time will be found in 
3 Wood's C. C. Rep., page 351. The demurrer was argued 
in behalf of the State by Hon. George McCormick, then 
attorney-general. After this, complainant filed an amended 
bill December 24, 1879, the main object of which was to 
compel by mandatory injunction the Commissioner of the 
General Land Office to issue certifica:tes to lands of equal 
value to be located by them upon any part of the public 
domain of the State. 

"Some time before this, Judge S. A. Willson, of the 
Court of Appeals, then associated with W. P. Gaines, Esq., 
was emplo^'ed by the Governor to represent the State, and 
after his employment Peeler & M;ixey were also retained. 
My connection with the case began with the preparation of 
an amended answer in response to amended bill, which was 
filed February 2, 1880. Judge Willson had in the mean- 
time given much attention to the matter of evidence, per- 
sonally visiting, in different parts of the State, old settlers 
of the colony, and obtaining from them information touching 
the performance of the contract by Mercer and associates, 
thus laying the foundation for obtaining testimony that 
afterwards proved of great value. 

" Judge Willson and myself prepared and had printed and 
distributed from the General Land Office a number of ques- 
tions which were sent to every person in the State, through 
whom we thought it likely information material to the suit 
could be obtained. The replies to these questions were 
useful guides in taking the depositions of the witnesses for 
the defense. The testimoii}' being complete on both sides, 
the case was brought to a final hearing at Austin, January 
16, 1882, before his honor. Judge Pardee, the circuit 
judge. 

" For the complainant, the case was argued bj'^Mr. John 
Mason Brown, of Louisville, Kentucky, and Judge O. S. 

30 



466 BENCH AND BAR OF TEXAS. 

West, of Austin ; and for the State, by Judge S. A. 
Willson and myself. The hearing was concluded January 
26, 1882, and on that day a final decree was rendered as 
follows : — 

" 'This cause came on to be heard at this term on the 
twenty-sixth day of January, 1882, and was argued b}'' 
counsel; and thereupon, upon consideration thereof, it was 
and now is ordered, adjudged and decreed as follows, 
namely : 

" ' First. That the complainant's allegations are found to 
be true and supported by the proof ; and that the order and 
writs of injunction heretofore granted and issued in this 
cause is hereby made perpetual ; and the defendant, W. C. 
Walsh, commissioner of the general land office of the 
State of Texas, and all and every his successors in office, 
and all his clerks, draftsmen, subordinates, agents, servants, 
and employes, and all officers or agents subordinate to him, 
the said defendant, or to any of his successors in office, or 
in any manner under the directions, supervisions, or control 
of him, or of any of his successors in office, be and hereby 
is and are restrained, prohibited, and forever enjoined 
from issuing or delivering, or permitting to be issued or 
delivered, to any person or persons, or to any corporation, 
any certificate or certificates, patent or patents, plat or 
plats, for any land or lands within the boundaries of Mer- 
cer's colony, as set forth in the bill of complaint and the 
exhibits therewith filed; and from any and all interference 
with, or infringement of, or upon, the land grant or land 
reservation known as Mercer's colony; and from doing, or 
causing to be done, any act or thing whereby there may 
issue any patent, certificate, plat, or grant of any land 
within the boundaries of said Mercer's colony, as defined and 
set forth in the bill of complaint and the exhibits filed, and 
as set forth' in the contract made on the twenty-ninth of 
January, 1844, by and between the Republic of Texas, by 
Sam Houston, President thereof, and Charles Fenton Mer- 
cer, filed herein, whereof the original is on file in the office 
of the Secretary of State of Texas, and a copy is on file in the 
office of the commissioner of the greueral land office of the 



A. J. PEELER. 467 

State of Texas, except to the complainant, William Preston, 
as chief a^ent of the Texas Association, or his successors 
or assigns, or to such person or persons as he or his succes- 
sors may in writing direct. 

" 'And it is further ordered, adjudged, and decreed, that 
the defendant, William C. Walsh, Commissioner of the 
General Land Office of the State of Texas, and each and 
every his successors in office, and all his or their servants, 
employes, agents, clerks, draftsmen, surveyors, deputies, 
and subordinates, each and every one be and the same are 
enjoined, restrained, and prohibited from hindering, ob- 
structing, preventing or delaying the said William Preston, 
his agents, attorneys, employes, or the successors or 
assigns of said Preston and their agents, attorneys or 
employes, in the surveying, selecting, platting, recording, 
entering or claiming any and all lands lying within the 
limits and boundaries of the so-called Mercer colony as set 
forth in the bill of complaint and the exhibits therewith 
filed; and the said defendant and his successors in office, 
and his and their agents and subordinates are enjoined from 
hindering, obstructing, preventing, or delaying the said 
Preston or his successors or assigns, or the Texas Land Asso- 
ciation, from performing and completing and perfecting all 
and singular the several conditions, duties, obligations, and 
acts devolving upon the said Preston or said association, 
under the terms and stipulations of the colonization contract 
set forth in the bill of complaint in this cause, and in the 
exhibits filed with the said bill of complaint, provided^ 
that this decree and the injunction herein shall not be held 
nor intended, to affect any lands appropriated or set apart 
by the act of Congress of the Republic entitled, "An act 
appropriating certain lands for the establishment of a gen- 
eral system of education," approved January 26, 1839, and 
which lands were legally located, surveyed and appropriated 
for a State university, prior to January 29, 1844, the date 
of the Mercer colonization contract. 

" 'And it is further ordered and adjudged that the defend- 
ant do pay all the costs herein incurred, the clerk to tax 
the same and that proper process issue therefor.' 



4(58 BENCH AND BAR OF TEXAS. 

"An elaborate opinion in support of this decree will be 
found in 10 Federal Reporter, p. 315. 

" Immediately after this decree, Judge Willson, whose val- 
uable services, to which I have already referred, contributed 
to the ultimate success of the defense, having been appointed 
a judge of the Court of Appeals, ceased his connection with 
the case, and its management thereafter, until its final 
decision by the Supreme Court of the United States, fell 
exclusively upon me, and had defeat instead of success fol- 
lowed, it should, if upon any one, have been visited upon 
me. 

" Immediately after this decree. General Preston caused 
a notice to be published in the Austin Statesman^ to the 
effect that the Mercer colony grant had been fully estab- 
lished, and that all locations, surveys and patents within 
its limits after January 29, 1844, had been declared invalid. 
All parties interested, desiring information, were directed 
by this notice to confer with his attorneys and agents at 
Austin. The object of this notice is apparent, and I am 
informed that some persons, to avoid injury and loss, did 
pay to Preston or his agents money, in order to get their 
patents from the general land office. 

' ' The effect of this decree will be better understood b}' 
reference to a communication from the Hon. W. C. AYalsh, 
commissioner of the land office, addressed to counsel for 
the State, for the purpose of aiding the advancement of the 
cause in the Supreme Court of the United States. He 
&ays: — 

" 'As commissioner of the general land office of the 
State of Texas, and appellant in the above entitled cause, I 
desire you to make an effort to have the same advanced at 
the present term of the Supreme Court. My reason for 
wishing a more speedy determination of the case than 
would follow if it takes its course on the docket is, that the 
decree appealed from embarrasses the administration of the 
land department of the State government, and operates to 
the prejudice of a large number of citizens. 

" ' Mercer's colony contains within its limits, as claimed 
about 4,000,000 acres of land and embraces in whole, the 



A. J. PEELER. 469 

counties of Navarro, Kaufman, Rockwall and Hill, and in 
part, the counties of McLennan, Limestone, Freestone, 
Anderson, Henderson, Van Zandt, Raines, Hunt, Hopkins, 
Collin, Dallas, Ellis, Johnson, Hood and Somervell, and 
must have at this time, taking as a basis the United States 
Census Report for 1880, a pojDulation of not less than 131,- 
000. 

" * It is very important to the people of this rich and thickly 
settled section that they should be able to obtain from my 
office copies of maps, plats, etc., to be used in settling and 
adjusting the corners and boundaries of their lands. Many 
of the surveys are old, and the landmarks have passed 
away, and recourse to records and papers in my office is 
essential to their re-establishment. Under the injunction 
perpetuated by the Circuit Court, in its final decree, I am 
restrained from issuing any patent, certificate, plat or grant 
of any land within the boundaries of said colony ; and not- 
withstanding repeated requests, I have not only refused to 
furnish maps or plats or copies thereof, but even to answer 
interrogatories from the courts of the State, when such 
interrogatories would require copies of papers or maps or 
plats of land pertaining to titles within said colony. The 
effect of all this is to tie up the land office, and practi- 
cally deny to a considerable portion of the people of the 
State access to the records of my office, and this too, though 
their titles may have originated long before the Mercer col- 
ony grant, and may have no connection therewith. 

" 'As I construe the injunction, it also precludes me from 
giving official information or furnishing maps to county 
surveyors with reference to county boundaries within said col- 
ony and is in many other ways an obstruction to the adminis- 
tration of the affairs of my office. As you are aware, hav- 
ing no personal interest in the matter, being simply an offi- 
cer of the State, I was unable to give a supersedeas bond 
and William Preston has now a suit pending in the Circuit 
Court, filed since the appeal was perfected, an application 
for the appointment of a receiver, to divest me of all control 
of matters pertaining to said colony. As to whether it is 
prcjposed to press this application, I can not say, but this 



470 BENCH AND BAR OF TEXAS. 

and such like proceedings afford, it seems to me, an addi- 
tional reason why, if it be possible, the case should be 
advanced.' 

«' Governor Roberts in a communication for the same pur- 
pose, says: — 

'* ' I concur with the Hon. Wm. C. Walsh, commissioner of 
the general land office of the State of Texas, in the propriety 
of making an effort to advance the case to which he is 
appellant in the Supreme Court of the United States. The 
State, it is true, is not nominally a party to the suit, but the 
decree appealed from, operates directly upon a State offi- 
cial, and obstructs him in the discharge of important duties 
in which the State and a large number of citizens are inter- 
ested. I hope you may be able, in view of the nature of 
the case and the public interest involved, to secure its 
speedy determination.' 

" And in speaking of this decree of the Supreme Court of 
the United States, says : ' It is not very easy to see on what 
principle this decree can be sustained. There is no decree 
by which the right of plaintiff to any specific land is affirmed 
nor to any ascertained quantity of land to be located gen- 
erally. 

" ' There is no attempt, as there can be none in this suit to 
adjust the conflicting rights of the State of Texas, and the 
plaintiff in this land. There is no attempt to define the 
number of acres to which the plaintiff is entitled, or what 
he is yet to do, or what he may do, to perfect his right to 
any land whatever. 

" 'And yet without establishing any such right or deciding 
what plaintiff may yet do to establish a right, the hands of 
the o-overnment are tied absolutely to all the vacant land 
which belongs to it within the colony limits. Not only are 
the hands of the government thus tied, but other persons 
havms: rights inchoate or vested in those lands, with undis- 
puted claims to patents, to certificates, to surveys perhaps, 
are all arrested in the precise condition they may be at the 
time this decree was rendered. The whole land office bus- 
iness and functions of the commissioner within that colony, 
no matter whose interests are involved, are paralyzed by 



A. J. PEELER. 471 

this decree. And what is more, they are paralyzed forever ; 
for the lanorua2;e is that the commissioner and all his clerks, 
agents, etc., are enjoined forever from doing the forbidden 
acts.' 

" Upon consultation it was deemed advisable by Governor 
Eoberts, Hon. W. C. Walsh, commissioner of the land 
office, and Hon. J. H. McLeary, then attorney-general, 
to prosecute an appeal from this decree to the Supreme 
Court of the United States. In the propriety of this action 
Judge Willson, and my then law partner, Mr. Maxey, and 
myself concurred. Governor Roberts, representing the 
State, entered into a written agreement with Peeler & Maxey 
to prosecute this appeal upon the following terms : Peeler 
& Maxey were to pay all traveling and other personal ex- 
penses, and were to receive in full for services $2,500 cash, 
and a similar amount when the case was submitted to the 
Supreme Court, making the whole fee $5,000. The State 
was to pay the costs of suit, etc. The contract is in dupli- 
cate, one being in my possession and the other on file in the 
executive office. 

" The third clause of this contract reads: ' Inasmuch as 
the appeal in said case does not operate as a supersedeas, 
and, pending the appeal, various efforts may be made to 
enforce the decree in the Circuit Court, it is further 
agreed that, if steps of importance should be taken in said 
case, in the said Circuit Court, pending said appeal, 
such as may not reasonably have been anticipated, and as 
require considerable labor and attention from counsel, then 
a fair compensation for such service, to be hereafter agreed 
upon, is to be allowed and paid by said State.' 

"As soon as it was settled that I was to take charge of the 
case, I at once took steps to perfect the appeal. This being 
done, I had the transcript, which contained six hundred and 
eightv-nine pages, made up under my own personal super- 
vision. In addition to this I prepared a history of the case 
for the use of the State, containing, together with the appen- 
dix thereto, two hundred and forty-six pages of printed 
matter. This was a work of great labor and occupied much 
of my time. The object of its preparation was to have, in 



472 BEXCH AND BAR OF TEXAS. 

view of the importance the case had assumed and the extent 
to which public and private rights were involved, a full and 
accurate history of everything in relation thereto for the 
information of the officers and Legislature of the State. 
The advantage of such a document, in the event of an 
appeal to the Legislature for relief or for a compromise as 
was apprehended might be made, led to the publishing of 
several hundred copies of this document by the State, some 
of which I suppose still remain in the public archives. 

" For this I neither charged nor expected compensation. 
The transcript was completed June 8, 1882, and was at once 
forwarded to Washington, and filed in the Supreme Court, 
June 26, 1882. After perfecting the appeal in the interest 
of the State for the defendant, Walsh (Cause No. 863) the 
complainant, Preston, also perfected and prosecuted an 
appeal (Cause No. 864) in his own behalf, thus making two 
cases instead of only one, as was contemplated at the time 
the contract for fee was made. As already noted in the 
communication of Commissioner Walsh, he was unable to 
give a supersedeas bond, and the complainant, taking ad- 
vantage of this, applied to the June term of United States 
Circuit Court for the appointment of a receiver to collect 
and lake charge of all funds, lands, etc., to which Mercer 
and associates, or those claiming under them, asserted title 
under the final decree of the Circuit Court, and generally, 
for that it was its purpose, to administer the land office so 
far as the country embraced within the limits of the colony 
contract was concerned. This application, the effect of 
which, if granted, would have been most mischievous upon 
the interests of the State and the people, was pressed in 
open court by Gen. Preston and Mr. John Mason Brown 
before Judge Woods. It was resisted by me, and the 
result of the arsument was that Judire Woods then declined 
to grant the relief, but required the commissioner to put in 
an answer which I afterwards prepared and filed. After- 
ward the complainant abandoned, pending the appeal, and 
in view of the steps which had been taken to advance the 
case, all further efforts in this direction. This was a matter 
which occupied much of my time, and for which, under the 



A. J. PEELER. 473 

third clause of the contract, I am entitled to a reasonable 
compensation. 

" Seeing the importance of an early decision, I vyent to 
AVashington in December, 1882, for the purpose of endeav- 
oring to get the Supreme Court to advance the case on its 
docket. I went by New Orleans on my way to Washington 
and had a personal conference with Judge Pardee, and suc- 
ceeded in obtaining from him a communication recommend- 
ing the advancement of the case. Though not strictly a 
case which under the rules the Supreme Court would 
advance, T had the good fortune to obtain an order for its 
advancement, and for the hearing of the cause in March, 
1883. But for this, the case would, in all probability, not 
have been reached until some time in 1886. I then re- 
turned home, and at once began the preparation of my 
brief, which, together with the appendix, contains two hun- 
dred and forty-six pages of printed matter. In addition to 
my brief proper on the appeal of Commissioner Walsh 
(Cause No. 863), I was compelled also to prepare a brief 
of forty-four pages of printed matter for the purpose of 
meeting the appeal (Cause No. 864) taken by Preston. 
While I never had much doubt of being able to reverse 
the decree of the court upon the appeal of Commissioner 
Walsh, I naturally felt great concern when in addition to 
this I was called upon to meet the questions raised by 
Preston on his appeal. That the difference between the 
two cases may be appreciated, I give the errors as assigned 
by Walsh on his appeal, and the errors as assigned by 
Preston on his appeal. 

" The errors assigned by Walsh are as follows: — 

" ' 1. The court erred in decreeing under law and proofs 
that Mea-cer and associates had so performed the conditions 
of their contract with the Republic of Texas as to acquire 
thereunder rights susceptible of judicial cognizance and en- 
forcement. 

" ' 2. The court erred in holdingthat articles of annexation 
between United States and the Republic of Texas created a 
trust in favor of Mercer and associates cognizable by said 
court. 



474 BENCH AND BAR OF TEXAS. 

*' ' 3. The court erred in not sustaining defendant's plea 
of res atl judicata. 

" ' 4. The court erred in not sustaining defenses of stale 
demand, laches and acquiescence. 

" ' 5. The court erred in holding that complainant had 
shown such interest in subject-matter of suit and such title 
in himself as to authorize decree in his favor. 

" ' 6. The court erred in not dismissing bill, because in 
effect a suit against State of Texas. 

" < 7. The court erred in not sustaining defendant's objec- 
tions for want of parties. 

" < 8. The final decree, as rendered, is not only contrary to 
law, but fails to define rights of complainant or duties of 
defendant, and must prove nugatory so far as real merits 
of controversy are concerned. Said decree is further 
erroneous in adjudging cost of suit against defendant 
Walsh.' 

<' The errors assigned by Preston are as follows : — 

" ' The Circuit Court declined to give relief to the extent 
prayed by complainant : — 

" ' 1. It refused to grant a mandatory injimction inhib- 
itino- the land commissioner's further refusal to issue cer- 
tificates and patents for the ascertained quantity of land 
(1376 sections) under the contract, within the colonial 
boundaries, or its equivalent in value elsewhere. 

" » 2. It refused a similar mandatory injunction inhib- 
iting his refusal to issue certificates and patents on tender 
of the contract price, for the alternate 1376 sections within 
the colonial boundaries, or its equivalent in value else- 
where. 

" ' 3. It refused to grant a mandatory injunction, the 
effect of which would be to permit the location of com- 
plainant's patents and certificates on any vacant and unoc- 
cupied lands of Texas, within or without the limits of 
Mercer colony. 

" ' 4. It refused to recognize complainant's claim as a 
trust fastened upon the entire public domain and enforce- 
able in equity as against the unappropriated lands.' 

'♦ On behalf of Preston, three printed briefs were filed in 



A. J. PEELER. 475 

the Supreme Court, one by General Preston, one by Mr. 
Mason Brown and one by Mr. George Davie, making with 
the documents thereto appended, 243 pages. 

" The two cases were argued orally before the court by 
Messrs. Brown & Davie for Preston, and by myself in be- 
half of the State. Owing to the importance of the case, 
the court declined to hear it without a full bench, and 
owing to the press of business before the court it was not 
decided until the ensuing term, on November 19, 1883. 
The opinion of the court, delivered by Mr. Justice Miller, 
with whom concurred Chief Justice Wait and Associate 
Justices Bradley, Wood, MatthcAvs, Gray and Blatchford, 
and the dissenting opinion of Mr. Justice Harlan, with 
whom concurred Mr. Justice Field, will be found on 109 
United States, page 297. An examination of these opinions 
will show what the court considered the questions presented 
upon the two appeals. 

" The judgment of the court was that upon the appeal 
of Walsh the decree of the Circuit Court below be reversed 
and the case remanded with directions to dismiss the bill 
which necessarily disposed also of Preston's appeal. After 
an attentive examination of the dissenting opinion of Mr. 
Justice Harlan, taking into consideration the fact that 
Judo-es Wood and Pardee had both rendered unfavorable 
opinions and the former was one of the members of the 
bench to finally pass upon the case, it can hardly be said 
that the case was free from difficulty or was not one requir- 
ing great labor and involving great professional responsi- 
bility. 

"As soon as it could be done after the Supreme Court 
had decided the case, I obtained a mandate from that court 
and filed it in the United States Circuit Court at Austin, and 
at the May term of the said last named court I obtained a 
decree directing, in pursuance of the mandate, the bill to be 
dismissed and taxing all costs of the suit from its inception 
against William Preston. A certified copy of this decree I 
caused to be at once filed with the commissioner of the 
general land office, and this finally disposing of the case^ 
my connection therewith ceased. 



476 BENCH AND BAR OF TEXAS. 

" I submit herewith a copy of the printed report of the 
case made for the use of the State, a copy of the printed 
transcript of the case, and copies of the briefs of the cases 
on both sides, on the two appeals as filed in the Supreme 
Court of the United States. 

" Though I have expended a considerable portion of what 
I have received out of the fee coming to Mr. Maxey and 
myself, in going to, returning from and remaining at Wash- 
ington and practically, from the time the case went to the 
Supreme Court, until its argument in March, 1883, aban- 
doned all other business so as to give it my best attention I 
ask nothing further as to the appeal (cause No. 863) of Com- 
missioner Walsh. However dlsproportioned it may seem, 
when compared with the magnitude of the interests in- 
volved and the consequent labor and responsibility of coun- 
sel, I am bound by the contract and make no complaint. I 
only ask for such reasonable compensation as I may be en- 
titled to for services rendered the State in the matter of the 
application for the appointment of a receiver and in the 
matter of Preston's appeal (in cause No. 864). For these 
services the contract contemplates I shall be paid, and I am 
prepared to agree with your Excellency, or any other rep- 
resentative of the State, having authority to act in the 
premises at any time on the amount thereof. If your Ex- 
cellency has no appropriation which you can apply to my 
claim, I then trust it will meet your approval for me to 
inclose copies of this communication to members of the 
Legislature now in session, upon whose judgment as to 
what is right I must rely — a judgment which shall be ex- 
ercised so far as I am concerned free from personal appeals 
and influences. 

*' If I have seemed to give special prominence to my own 
services in the case, it is not from any desire to detract 
from other counsel, for I cheerfully accord to all high abili- 
ties and a faithful discharge of duty, and claim no honor 
which I do not willingly share with them ; but it is because 
I am presenting my personal claim, it having been under- 
stood between Mr. Maxey and myself, after the dissolution 
of our copartnership, that for services not covered by the 



A. J. PEELER. 477 

veofular fee in which we paiticipated, I should be entitled to 
the compensation. In conclusion, it is proper for me to 
saj that I have submitted this communication to Gov. 
Eoberts, Hon. W. C. Walsh, Hon. J H. McLeary, Hon. 
S. A. Willson, and Col. W. P. Gaines, former law partner 
of Judge Willson, and to T. S. Maxey, Esq., my former 
partner, with the request that if I have fallen into any 
errors or mistakes, they point them out. A reply from 
from each of these gentlemen will be found herewith. 

** Kespectfully submitted, A. J. Peeler." 

"General Land Office, ) 
"Austin, Texas, January 31, 1885. ) 

*' -4. J. Peeler, Esq., Austin, Texas — 

" Dear Sir : I think your communication is in every par- 
ticular correct. 

"Very respectfully, W.C.Walsh." 

«' Austin, Texas, January, 31, 1885. 
" Col. A. J. Peeler, Austin — 

" Dear Sir : I have examined your report of the ' Mer- 
cer Colony Case ' and I believe it to be entirely correct. I 
do not hesitate to say that the compensation received by 
you in this case, considering the immense interests at stake, 
the important questions involved, and your valuable and 
untiring services to the State, is far below what it should 
have been, and in my opinion your claim for additional 
compensation is proper and just. 

" Kespectfully yours, Wm. P. Gaines." 

"Austin, Texas, January 31, 1885. 
" Col. A. J. Peeler — 

" Dear Sir : I have received printed communication ad- 
dressed to the Governor relating to your employment and 
services in the Mercer Colony case in the Federal courts. 
The claim, though unfounded, was surrounded with a variety 
of circumstances that gave it a plausible appearance of 
merit, which required a thorough and laborious investigation 
into the facts and law of the case, and a competent knowl- 



478 BENCH AND BAR OF TKXAS. 

edge of equity and of equity practice in the Federal courts. 
The suit, as I regard it, was a bold adventure in an effort to 
enlist the powers of a Federal court of equity to restrain 
the action of the State government in regard to the land 
within the large and populous territory of the State, known 
as Mercer's Colony, and to throw a cloud upon the land 
grants of the persons who resided within it, so as to force 
in the end some sort of a legislative compromise similar to 
that which was effected in the claim of the Peters' Colony 
contractors. The ability and apparent confidence with 
which the case. was prosecuted, the wide range of the mat- 
ters involved in it, obscured by the long lapse of time, to 
which may be added the great uncertainty as to what extent 
a Federal court of equity might go in its interference with 
the operations of the State government to reach some com- 
pensation for a supposed inchoate equity, together with the 
very unfavorable decisions of the Federal Circuit Court 
tending in that direction, made it necessary to give to the 
case almost constant attention and watchfulness, so as to be 
able to meet the different positions in the case. 

" I know that much of your time was devoted to this case 
from the time of your employment to the end of it in the 
Supreme Court, That you was equal to the task is fully 
shown by your written history and brief of the case, but it 
is still made more perspicuous in the decision made, and 
opinion delivered by the Supreme Court of the United 
States in the case. That opinion shows that the specious 
and adventitious circumstances attending the case were elimi- 
nated, and the baseless foundation of the case made bare to 
view, which required the court not only to revise the judg- 
ment of the Circuit Court, but to order the bill to be dis- 
missed, which put an end to the claim forever. 

" O. M. Egberts." 

"Austin, Texas, January 31, 1885. 

♦' Col. A. J. Peeler^ Austin — 

" Dear Col. : I have examined your report to the Gov- 
ernor in reference to the Mercer Colony case, and it seems 
to be correct. My own personal services in the matter were 



A. J. PEELER. 479 

unimportant, having remitted the case entirely to your own 
management. 

"I hope the Governor will appreciate the propriety of 
your reasonable request in seeking compensation for services 
not covered by the fee originally paid, and that you will be 
able without further difficulty in effecting an amicable and 
satisfactory arrangement as to the amount of the same. 

" If I can be of any service in the premises, it will give 
me pleasure to assist you. 

«* T. S. Maxey." 

"San Antonio, Texas, February 1, 1885. 

" Col. J. Peeltr, Austin, Texas — 

" My Dear Friend : Your favor of January 31, just at 
hand. I have carefully read your printed letter to Governor 
Ireland dated to-morrow, and cheerfully say that it is a very 
plain, accurate statement of your connection in the Mercer 
Colony case. You have not dealt as fully as you might 
probably have done on the extent of your labors, the unre- 
mitting Zealand signal ability with which you managed this 
case. The State could not have been more ably nor more 
successfully represented. You ought to be paid according 
to the contract. 

" Yours truly, J. H. McLeary." 

" Austin, Texas, February 2, 1885. 

*' Hon. A. J. Peeler, Austin, Texas — 

"Dear Sir: I have had the pleasure of reading your 
report to his excellency Governor Ireland of the litigation 
known as the Mercer Colony case. Having for a time been 
connected with you in that litigation, I am able to say that 
the report is not only accurate in its facts, but very liberal 
in its statements in regard to the services of myself and 
others. I say truthfully that it is attributable to your great 
labor and eminent abilities that this important litigation was 
brought to a successful termination, and at so early a day. 
I trust your valuable services to the State in this matter will 
be properly appreciated and liberally compensated, and 



480 BKNCH AND BAR OF TEXAS. 

knowino; as I do the amount of labor and the great loss of 
time which has been occasioned to you by reason of your 
faithful attention to the interests of the State, I know that 
the pay which you have already received is poor compensa- 
tion indeed, compared with what you deserve, and compared 
with the benefit which has accrued to the State. 

<' Very respectfully, Sam A. Willson." 

'* Executive Office, Austn, Texas, Feb. 5, 1885. 
*' Col. A. J. Peeler, Austin — 

" Sir: I am in receipt of your favor of date 2d inst., 
with accompanying package. I congratulate you on the 
early and successful termination of the Mercer Colony case, 
and, in behalf of the State, thank you for the valuable ser- 
vices rendered by you. 

" With reference to your claim for services in collateral 
suits touching the same matter, I can only say that I know 
nothing of their value or nature. Nor are there any funds 
under my control out of which I would be authorized to pay 
the fees referred to. 

" I therefore suggest that you lay your claim before an 
appropriate committee of one of the Houses for such relief 
as the Legislature may see proper to authorize. 

"lam, sir, very respectfully, your obedient servant, 

" Jno. Ireland." 

In the field of authorship Mr. Peeler is not unknown. 
His work entitled " Law and Equity as Distinguished and 
Enforced in the Courts of the United States," displays 
great research and has received very high commendation 
from the bench and bar. 

The distinction between law and equity, being a control- 
ling feature in the administration of remedial justice in the 
courts of the United States, any work must be of value to 
the profession, which, in a careful and painstaking manner, 
presents the principles upon which this distinction depends. 
In this book the author discusses fully and exhaustively 
common law and equity as recognized and contradistin- 



A. J. PEELER. 481 

guished in the Constitution and statutes of the United 
States. He refers to, and extracts from, cases in which 
the distinction between law and equity is said to be derived 
from the Constitution. In so far as the distinction is 
recognized by statute, there is a full discussion of all such 
statutory provisions. 

The author does not pretend to have covered, in detail, 
the whole field of Federal practice, but has discussed, with 
the utmost fullness, the relations to each other in the State 
and Federal courts. Upon the general principles of Fed- 
eral jurisdiction, and with reference to the jurisdiction of 
the respective courts of the United States, District, Circuit 
and Supreme, this treatise is fuller in its discussion of ques- 
tions arising under the statutes of the United States and 
determined by the decisions of the courts of the United 
States than any other existing work. 

The author discusses, with the fullest possible reference 
to authoritative decisions, the source and rules of legal and 
equitable rights, whether found in State laws, the Constitu- 
tion of the United States, or in the statute of the United 
States. 

Chief Justice Waite, of the Supreme Court of the 
United States, says: "lam sure the book will be found 
to be one of great practical usefulness. The practice which 
now prevails generally in the States of abolishing the 
distinction between the actions at law and suits in equity 
makes it the more important that the profession should 
have at hand a convenient manual for their use in conduct- 
ing proceedings in the courts of the United States, where 
that distinction must be maintained." 

Associate Justice Bradley says: *' I anticipate pleasure 
and instruction from its perusal." 

Associate Justice Blatchford says : "A separate work 
on this subject will prove useful, and the care and discrim- 
ination you have exercised in your labors will commend 
your book to the legal profession." 

Associate Justice Mathews, after speaking of the great 
practical importance of the subject, says : "I have looked 
through the pages of your volume with interest and care, 

31 



482 BENCH AND BAR OF TEXAS. 

and feel warranted in saying that you have discussed the 
subject in the light of judicial decisions with great fullness 
and learning, and, I believe with reliable results." 

Judge West, of the Supreme Court of Texas, after re- 
ferring to the difficulties of the subject, which in his pro- 
fessional experience he learned to appreciate, says : 
" There is no treatise or book upon Fedeiai practice, that 
I am aware of, that occupies the precise place on this sub- 
ject that yours is designed to fill. The arrangement of the 
work is logical, and, in your successive departments, the 
foundation and sources on which the jurisdiction of the 
Federal courts rest, both as courts of law and equity, are 
naturally and gradually, in their proper order, unfolded and 
considered in a most satisfactory manner. I regard the 
work as one every practitioner in those courts should have 
constantly by him. You have, in this contribution to the 
literature of the law, well paid the debt which every lawyer 
owes to his profession. I can not but believe that the 
opinion of its great merit that I have here expressed will 
be very generally indorsed by the bar of the United 
States." 

Besides his legal authorship Mr. Peeler has contributed 
to the press many articles on questions of general im- 
portance. He is the author of the various letters which 
attracted much attention at the time and which appeared in 
the Galveston JSFews just before the meeting of the Consti- 
tutional Convention of 1876, over the signature of " Pub- 
lius." These letters indicated much research and were 
designed to influence the public mind in favor of a thor- 
oughly efficient and well paid judiciary. At the request of 
the State Bar Association he read a paper before that body 
at Houston, entitled " The right of land owners in Texas 
to protection against governmental and individual aggres- 
sion in the use and enjoyment of their property." The 
"fence-cutting troubles" which suggested the paper, in- 
duced its publication throughout the State and intensified 
the interest with which it was generally received and read. 

Mr. Peeler possesses all the qualities of an eminent lawyer 
and the characteristics of a good man. His predominant 



A. J. PEELER. 483 

traits are: an acute perception, sound judgment, un- 
swerving integrity and indomitable resolution. His mind 
is capacious, active and peculiarly practical, is habituated 
to comprehensive observation and steady reflection, and 
gathers every feature of fact and principle that forms 
an ingredient of a legal proposition. His successful man- 
agement of the subtle and abstruse questions involved in 
the many important cases in which he has been engaged 
strikingly exemplify his genius and resources. The confi- 
dence reposed in his ability, the expectations engendered 
by his characteristics, and the professional honors conferred 
upon him, have met with a responsive fidelity and power 
which have gained him applause and reputation. In the 
rounded bulk of prof essional attainment, moral culture and 
social accomplishment he has no superior at the Texas bar, 
and he wears the badojes of his merit with dignified meek- 
ness and becoming modesty. 



484 BENCH AND BAR OF TEXAS. 



WILLIAM M. Walton. 



There are but few men whose lives jDresent a more strik- 
ing exhibition of the possibilities. of energy and determina- 
tion to attain distinction and success amid difficulties 
apparently insuperable, than that of the subject of this 
sketch. 

William M. Walton was born at Canton, Mississippi, on 
the 17th of January, 1832. His early education was con- 
fined to the old field schools of the country, and later in 
his youth, he taught the primary classes in these schools to 
pay for his own tuition and at the same time labored on a 
farm during the mornings and evenings and on Saturdays 
to defray the charges for his board and other expenses. 
On approaching the age of maturity he obtained employ- 
ment as a deputy in the office of the circuit clerk of the 
county, and having saved a portion of his small compensa- 
tion, he went to Charlotteville, Virginia, and taught in the 
preparatory school there in order to enable him at the same 
time to receive instruction in the University of Virginia 
which he attended during the sessions of 1849 and 1850. 
Returning to Mississippi in the spring of 1851, he began 
the study of law in the office of Cothran & George at 
Carrollton, the latter being at present a United States Sen- 
ator from that State. In 1852 he was prepared to enter 
the bar, but being yet a minor he obtained his license in 
the fall of that year from Vice-Chancellor Dickenson at 
Carrollton under authority of a special act of the Legisla- 
ture relievino; him of his legal disabilities. In the month 
of February, 1853, he removed to Texas and located at 
Austin where he began the practice of his profession and 
has ever since resided. In 1862 he entered the Confeder- 
ate army as a private, but was soon afterwards elected 



WILLIAM M. WALTON. * 485 

lieutenant, was then promoted to a captaincy and was then 
elected major of his regiment. He was afterwards offered 
the command of a regiment of cavalry but declined. At 
the close of the war he quietly resumed his practice. In 
186G he was elected Attorney-General of the State, but was 
removed by military authority in 1867, as one of the ob- 
stacles in the path of reconstruction, and since then has de- 
voted his energies and aspirations entirely to the practice 
of his profession which he loves with a devotion of a de- 
votee. 

Maj. Walton was married in 1854 to Miss Letitia A. 
Watkins, of Carroll County, Mississippi, whose qualities of 
excellence have doubtlessly had a large share in insjDiring 
his efforts and directing his aspirations. His first associa- 
tion in the practice of law was with A. J. Hamilton in 1854, 
to which F. W. Chandler was afterwards admitted. In 
1858 he formed a copartnership with Judge S. G. Sneed, 
which afterwards included Thomas E. Sneed, and continued 
until the commencement of the civil war, when the forum 
was exchanged for the field. After the war he formed a 
copartnership with W. P. de Normandie, which continued 
until 1870, when, his partner having retired from the bar, 
he associated with John A. Green, and in 1875 R. J. Hill 
was admitted a member of the firm. In 1882 Mr. Green 
withdrew and settled in San Antonio, and in 1884 N. S. 
Walton, a son of Muj. Walton, became a member of the 
firm which now exists under the name of Walton, Hill & 
Walton. 

He is a profound lawyer and a man of superb social 
qualities. Generosity and magnanimity are prominent 
features of his character, and he is a true patriot, an up- 
right citizen and a faithful friend ; and if it were possible 
for the author of this work to be blinded by partiality or 
personal regards as to a true insight into the characters 
of men whose traits he has studied. Major Walton is one 
of the few persons whose qualities could enchant his ob- 
servations. But he is an open-minded, open-hearted and 
open-handed man, and the seal of bis character pre- 
sents its stamp to all the world ; upon which inscribed in 



48() * BENCH AND BAR OF TEXAS. 

living characters, are the qualities which I have assigned 
him. 

As a lawyer Major Walton has few superiors in the State, 
and while attorney -general evinced a broad scope of legal 
view amid the mass of novel and perplexing questions that 
during that time presented themselves for solution to his 
discernment and judgment, which characterized him as one 
of the most eminent of those whose legal counsel has 
guided the helm of the State. He was a staunch supporter 
of Governor Throckmorton in his efforts to maintain the 
rights and dignity of Texas against military usurpation. 
But ail the polished arts of Nestor could not stay the wrath 
of Achilles, and Major Walton retired from the political 
scene with the verdict of popular applause. 



JACOB WAELDER. 487 



Jacob Waelder, 



The subject of this sketch is a native of Germany and 
•was born in the town of Weisenheim, in the Rhine Provinces, 
on the 17th of May, 1820. His father was a jeweler, and 
at the time of his birth his native town, Weisenhiem, was 
by conquest a part of the first empire of France, but after 
the downfall of Napoleon I it formed a part of the Rhine 
Provinces, and is now consolidated with the German Em- 
pire. Jacob had at an early age the advantages of the best 
schools of his native town and also of an excellent gymna- 
sium, which he attended until he was twelve years old. His 
father was a man of strong republican sympathies, and, being 
a great admirer of American institutions, emigrated to this 
country in 1833, and settled in Pennsylvania. Here his son 
continued his studies in a good school until he reached his fif- 
teenth year ; he was then placed in a printing oflSce and two 
years afterwards was employed as one of the proof-readers 
in the Constitutional Convention of Pennsylvania convened 
in 1837. In 1838 he went to Germany, where he remained 
over two years and completed his general education. In 
1841 he returned to America and established a newspaper at 
Wilkesbarre, Pennsylvania, of which he was the proprietor 
and editor ; but in 1842 began the study of law at that place in 
the office of Hon. L. D. Shoemaker, and remained under his 
supervision until he was prepared for the bar. In 1845 he 
obtained his license and entered upon the practice of law, 
but the Mexican War was at that time engrao-inor the atten- 
tion of the country, and Mr. Waelder, catching the inspi- 
ration of military enthusiasm, enlisted in the First Regiment 
of Pennsylvania volunteers and served throughout that 
war. He was elected a lieutenant of Company I of that 
regiment, which having embarked at New Orleans landed 



488 BENCH AND BAR OF TEXAS. 

below Vera Cruz with the army of Gen. Scott and partici- 
pated in the storming of that city and the castle of San Juan 
d'Ulloa, marched with Scott's army into the interior, was 
then moved forward first to Jalapa and then to the castle of 
Perote, from which place six companies of the regiment 
were ordered to Pueblo, where the army was then concen- 
trating. Lieutenant Waelder was appointed adjutant of the 
battalion composed of the advancing companies. When Gen. 
Scott moved upon the valley of Mexico this battalion, with 
small force of cavalry, was left at Pueblo and maintained the 
siege of that city against a force of four thousand Mex- 
ican troops which were joined by four thousand others un- 
der General Santa Anna, after the fall of the City of Mexico, 
until it was relieved by Gen. Joseph Lane in October, 1847. 
During the siege he was appointed acting assistant adjutant- 
general by Gen. Childs of the regular army, commanding 
the garrison, and was several times mentioned for good con- 
duct in the reports of both that officer and the colonel of 
his regiment. 

At the close of this war he returned to the practice of 
his profession at Wilkesbarre, and in 1850 was elected dis- 
trict attorney of Luzerne County, Pennsylvania, and also 
brigade inspector of militia ; but the failing health of his 
wife caused him to seek a home in a milder climate, and 
resigning these offices, in 1852 he removed to Texas and 
located in San Antonio, which he made his permanent resi- 
dence, and where he has attained eminent distinction as a 
lawyer and accomplished gentleman. In 1855 he was 
elected a member of the Legislature of Texas and was re- 
elected the two succeeding terms. 

As a legislator he was distinguished for his close and 
watchful attention of the interest of his constituents, and 
for the ardor and ability with which he advocated every 
measure calculated to promote the general welfare of Texas. 
Since his last term in the Legislature, in 1859, he has never 
sought any political preferment, but has devoted all his 
energies to a large law practice acquired and sustained by 
his integrity, ability and success. 

He has always been a thorough Democrat and during the 



JACOB WAELDER. 489 

war was a major in the Confederate army and served first as 
general enrolling officer, and subsequently as assistant pur- 
chasing commissary. In 1875 he was a member of the 
convention which framed the present Constitution of Texas^, 
and exerted a prominent influence in the formation of that 
instrument, which ended his political career. 

Soon after this war, seeing but little hopes of quietude 
and the peaceful pursuit of his profession amid the dis- 
organization of reconstruction, Mr. Waelder removed to the 
city of New York and practiced one year in Wall Street 
in copartnership with Mr. M. C. B^iggs, but returned to 
San Antonio in February, 1868, and formed a copartner- 
ship with Hon. Columbus Upson, who has recently been a 
member of Congress from that district, and this copartner- 
ship still continues. 

Mr. Waelder has been twice married. His first mar- 
riage was with Miss Lizzie Land, of Wilkesbarre, Pennsyl- 
vania, in 1849 — an accomplished lady, who died in 1866 ; 
and in 1870 he was married to Mrs. Ada Maverick, for- 
merly Miss Ada Bradley, of San Antonio, and this excellent 
lady has inspired him with much of that spirit of good 
cheer and contentment which pervades his social ethics and 
stimulates his professional exertions. 

As a lawyer Mr. Waelder is profound and accurate. He 
thoroughly comprehends the great principles of law estab- 
lished by the wisdom of ages as the proper measures of 
right and justice among men, and his sound judgment and 
indefatigable research enable him to apply these with a 
masterly hand to the affairs of society. He has been 
especially successful in the application of new .-md important 
features and interpretations in civil cases. His unabating 
industry and methodical habits lead him to a thorough 
understanding of his cases, and identifying himself with 
the interests of his clients in all meritorious suits, he sees 
but one side of a question — the one that has enlisted his 
exertions. 

Among the most notable cases in which he has been en- 
gaged before the Supreme Court are the following: I. A. 
& G. W. Paschal et al. v. W. H. Dangerfield et al., 37 



490 BENCH AND BAR OF TEXAS. 

Texas, 273. This case involved the question of presump- 
tions of grants and the subject of imperfect titles to lands, 
and the legal status of parties between whom partition has 
been made ; that they must sue separately to recover the 
possession of land which has been partitioned and to per- 
fect their title, and that this principle applies to suits both 
at law and in equity. Acklin v. Paschal et al. 48 Texas, 
14 ; Myers v. Dittmar, Admr., 47 Texas, 373 ; Daumhauer 
V. Devine, 51 Texas, 480; French et al. v. Sternberg et al., 
52 Texas, 92; Howard v. McKenzie et al., 54 Texas, 171 ; 
Horan v. Frank, 51 Texas, 401 — involving the nature and 
character of a mechanic's lien. Loonie v. Frank, same, 51 
Texas, 406 ; French et al., v. Grenet, 57 Texas, 273. Hec- 
tor V. Knox, Manning v. San Antonio Club, N. Y. & 
Texas Land Co. v. Sanchez, not yet reported. 

Mr. Waelder has been also engaged in a number of im- 
portant cases in the Circuit Court of the United States — 
notably the San Antonio and Bexar County bond cases, 
and is engaged in a case of considerable importance, which 
is now pending in the Supreme Court of the United 
States — the case of Sabanys and wife v. Maverick et al., 
in which he represented the defendants and recovered 
judgment for them in the Circuit Couit. This case 
involves some of the best business and residence property 
in San Antonio, comprising eight acres. 

The case of Paschal v. Dano-erfield was in litigation 
more than twenty -five years, and in the last effort made on 
motion for a rehearing before the Supreme Court, Judge 
Waelder, as counsel for the appellants, presented the fol- 
lowing observations, in reply to the arguments of the 
counsel for the appellees, which are of both legal and 
historical value: — 

" We had hoped, that after twenty-five years of litigation, 
this case was finally disposed of by the action of this court 
in reversino; the iudo-ment of the court below and dismissins; 
the cause. There was no reason to suppose, that after the 
full review which the case has had and the principles enun- 
ciated in the opinion of the court — an opinion which ex- 
hausts the subject and leaves nothing open for discussion, 



JACOB WAELDER. 491 

relative to this and similar titles — an effort would be made 
to induce the court to reconsider its action and reverse its 
own judgment. 

" The effort is made, however, and while we might well 
leave the opinion of this court to answer the present argu- 
ment, we will nevertheless offer some suggestions relative 
to the ' new departure,' which the court is asked to take, 
and which, if taken, would launch not only this case upon 
a sea of contest, the end of which can not be foreseen, but 
would open a source of new litigation in various parts of 
the State, which has been thought closed by the decision of 
this case by the present bench, and by the previous decis- 
ions of its predecessors. 

" The counsel may well say, that he is ' in opposition to 
every adjudication of every American court upon this sub- 
ject.' He assumes that he is only apparently so, because 
' the law and the reason of the law,' as understood by 
him, have not been before the courts for consideration. 

" We take a different view of the subject, believing that 
the very point here raised has been passed upon in previous 
adjudications. Thus in the case of Paschal v. Perez, 7 
Texas, 348, the counsel for Perez distinctly announces the 
proposition, that * the grant passed the fee under the laws 
of Spain;' and 'the act of Cordero passed the fee.' 
It will be remembered, that the concession in that case 
emanated from the same military chief and governor of 
Coahuila, ad interim of Texas ; was made at the same place 
and about the same time as the one now under considera- 
tion ; the language of one is the language of the other, and 
in both instances the parties to whom the concessions were 
made, are referred to the same Intendency for confirmation. 
The counsel of Perez endeavoring to show, that ' the 
authority of Cordero is beyond a question ;' refers to vari- 
ous decisions of the Supreme Court of the United States, 
none of which, although a cursory reading may have mis- 
led, sustain the position assumed. Thus in the case of 
Delassus v. The United States, ' the concession was made 
in regular form on the 1st of April, 1795, by Zenon Imdean, 
Lieutenant-Governor of the western part of Illinois, in 



492 BENCH AND BAR OF TEXAS. 

which the land lay, by special order of the Baron de 
Carondelet, Governor-General of the province ; given in 
consequence of a contract entered into by De Luzieres 
with the government for the supply of lead.' In deliver- 
ing the opinion of the court, Chief Justice Marshall says, 
that 'by the royal order of 1774, the power of granting 
lands, which had been vested in the Intendente by an order 
of 1768, was revested in the civil and military governors of 
the provinces, who retained it until 1798.' 

*' ' The concession is unconditional,' said the court, and 
it was sustained as title. But while this was done the court 
clearly points to the change of regulation in 1798, under 
which a different conclusion would have been arrived at and 
a different decision made. 

" In truth, i.n all of the cases in which grants made by the 
government of Spain have been sustained, these grants 
were made by persons duly authorized and depending on no 
conditions which had not been performed — they were abso- 
lute grants, made by competent authority, and were hence 
held valid, as they should have been. 

" The whole subject is fully reviewed by Mr. Chief Jus- 
tice Hemphill, in the case of Paschal v. Perez, and the con- 
clusion arrived at that the title of Perez was inchoate and 
imperfect, and that an imperfect title, emanating from a 
former, and unrecognized by the existing, government, 
forms no foundation for an action, and can have no stand- 
ing in a judicial tribunal. 

" So in the case of Menard's Heirs v. Massey, the Su- 
preme Court of the United States, after reviewing and 
re-examining the cases previously decided by that court, 
arrived at precisely the same conclusion, saying : ' From 
the first act, passed in 1805, Congress has never allowed to 
these claims (imperfect titles) any standing other than that 
of mere orders of survey, and promises to give title; and 
which promises addressed themselves to the sovereign 
power in its political and legislative capacity, and which 
must act before the courts of justice could interfere and 
protect the claims. And so this court has uniformly held.' 

" It will be remembered that, in the case last mentioned, 



JACOB WAELDER. 493 

the title presented was one substantially the same as the 
title presented in this case and that relied upon in Paschal 
V. Perez. And the court held it to be — as this court has 
held those of Perez and Cubier — inchoate and imperfect. 

" Again, in the language of Chief Justice Hemphill : 
' Was the act of the Governor (Cordero) final, or was it 
under the control of the Intendant, depending for its 
validity upon its confirmation ? ' Under the law then in 
force, as understood by the court and by Cordero himself, 
it is distinctly enunciated that such titles were not valid 
without confirmation by the political authorities, and that 
at that time the power to confer absolute titles or grants to 
lands was vested in the Intendant. 

"We might make further extracts from the same case, 
but the familiarity of the court with its conclusions and rea- 
soning makes it unnecessary. 

"The argument of the appellees' counsel endeavors to 
maintain, that after the 24th day of August, 1770 (should 
be 1774), the political and militarj' Governors of provinces 
had the right of granting and distributing Royal lands. 

" This is probably true, so far as the provinces of Louisi- 
ana and West Florida were concerned, but only as to those 
provinces. At least so it would seem from the communica- 
tion addressed to the Intendant of Louisiana (Moralez) on 
the 22d of October, 1798, and the royal order addressed to 
Gazoso de Lamos, Governor of Louisiana, on the same day. 
It was also so regarded by the Supreme Court of the United 
States in the case of U. S. v. Moore, 12 How. 219. 

" But it is equally true, that so far as the power had been 
vested in the Governors, it was recalled by that very order, 
which reads as follows : — 

" ' The King has resolved, for the sake of the better and 
more exact observance of the eighty-first article of the Royal 
Ordinance for Intendants of New Spain (not the province 
of Louisiana alone), that the exclusive faculty of grantin<y 
lands of every class, shall be restored to the Intendnacy of 
that province, free from the interference of any other au- 
thority in the proceedings as established by law (evidently 
the Regulations of 1754), consequently the power hitherto 



494 BENCH AND BAR OF TEXAS. 

residing in the government to those effects, is abolished 
and suppressed, being transferred to the Intendancy for 
the future.' (2 White's Rec. 477, 478.) 

"On the same day — October 22, 1798 — a substantial 
copy of this order was transmitted to Morales, the Intend- 
ant, for his guidance. (2 White's Rec. 245.) 

"Now, this order refers to the thirty-first article of the 
regulations of 1754, and is made for its better observance 
in the province of Louisiana. Hence, it would seem that 
in that province the article mentioned had never been in 
force, or that it had been recalled, or had not been observed 
as it should have been. The article read thus: ' The 
Intendants shall also be the exclusive judges of the causes 
and questions that may arise in the district of their provinces, 
about the sale, composition and grant of royal lands, 
and of seigniory, it being required of their possessors, and 
of those who pretend to new grants of them, to produce 
their rights, and institute their claims before the same In- 
tendants,' etc. (2 White's Rec. 69.) 

" Again, if the same relaxation of the eighty-first article 
of the regulations 1754 had occurred in the other provinces 
of New Spain, then the practice was also ' abolished and 
suppressed ' in such other provinces by the same order of 
1798. There is nothing from which relaxation can be in- 
ferred, but the order seems intended to correct any abuse 
or practice in that regard, for it expressly refers to the In- 
tendants of New Spain, and not to him of Louisiana alone, 
and declares that it is given for the better and more exact 
observance of the eighty-first article by the Intendants, 
transferring the power to them for the future. 

" It seems that on the 24th of November, 1735, a royal 
decree was issued, requiring all persons who would enter 
upon the lands in the provinces, to apply to the king in 
person ( 2 White ,62), and that in order to do away with this 
inconvenience, the ordinance of 1754 was established, by 
the eightj'-first article of which, as we have said before, the 
power to grant lands was vested in the Intendants of the 
provinces, which were established by the same ordinance — 
one of the Intendancies being located at the City of San 



JACOB WAELDER. 495 

Luis Potosi. Then the Intendar.cy of San Luis Potosi was 
governed by the ordinance establishing it, and all grants of 
land within its limits, or confirmations of imperfect titles, 
must, under those regulations, have emanated from it. 

"Regulations, such as those issued bv Morales in 1799, 
may or may not have been made by the Intendant of San 
Luis Potosi. Whether there were or not, does not appear 
to be definitely known. We admit, however, that the 
ordinance of 1754 was binding upon him, and that if a 
different practice had afterwards prevailed, that ordinance 
was fully restored and the power to make grants re-vested 
by the order of 1798. Whether the regulations of 1805, to 
to which Governor Cordero refers in directing Mrs. Cubier 
to present her title to the Intendant of San Luis Potosi for 
confirmation, contains provisions similar to those of Morales, 
we are not informed, though the only inference that can be 
drawn from that direction is, that there were such regula- 
tions, or, in the language of Chief Justice Hemphill: ' So 
far as we are informed of the laws then in force, they 
were not misunderstood, but correctly interpreted by the 
Governor. The Intendant, in the language of the ordi- 
nance, is the exclusive judge of causes and questions arising 
about the sale, composition, or grant of lands.' 

"We maintain, then, that in Coahuila and Texas, they did 
not have such regulations as those of Morales. They cer- 
tainly had those of 1754, which are all-sufficient. That 
they had no treaties with the United States we freely eon- 
cede; but that fact rather weakens than strengthens this 
case. 

" Nor is it claimed that the royal order of 1798, the regu- 
lations of Morales, or the ordinance of 1754, had any extra- 
territorial force. The principle we contend for, and which 
has been established and re-affirmed by this court, and all 
courts where the same question has arisen, falls within the 
ordinance, the order and the regulation under it ; and, it 
seems to us, that when the counsel for the appellees con- 
cedes, as he does, the legal effect of the action of Morales, 
he gives up the whole controversy. 

" He does the same when he says that he is ' strongly for- 



496 BENCH AND BAR OF TEXAS. 

tified by the universally accepted doctrine, that a public 
officer exercising certain powers pertaining to his office, is 
presumed to be possessed of the power until the contrary 
is shown.' For when he invokes and applies this pre- 
sumption to the act of Cordero in making the imperfect 
title to Mrs. Cubier, he must take it with its entire effect, 
viz. : that the act was done with all the power vested in him 
and no more. And that power fell very short of making 
an absolute grant, or passing the fee. This follows as a 
necessary sequence, without calling to aid that other doc- 
trine, that the officer is presumed to know the extent of his 
power. Hence, when Cordero made the imperfect grant in 
question — knowing that he had not the power to make a 
full grant — he directed his grantee to repair to the Intend- 
ant for its confirmation. 

" Whatever ceremonies may have been performed by 
Cordero, or by the alcalde under his orders, in granting 
such title as he could grant, whether such ceremonies were 
idle or otherwise, can not affect the character of the title. 
That can not gain strength by the declaration in the instru- 
ment, that as evidence of true possession, Mrs. Cubier was 
taken by the hand and walked over the two leagues ; that 
she plucked grass, washed earth, etc., etc. Whether any 
or all of these were actually done or not — although all 
these things were declared to have been performed in the 
name of the king, her title would, nevertheless, remain an 
imperfect one, requiring confirmation, which was never 
obtained. 

"That Mrs. Cubier could have defended her possession 
against a trespasser, we do not deny. She could have done 
the same under a resignardo, which gives protection to a 
claimant until a survey can be ordered, or until the title of 
possession issued by an authorized commission. So she 
could under a lease; same under a naked possession, though 
it might not have been lawful at its inception. 

" Counsel complains that this is called an Amparo. Now, 
an Amparo is given to one in possession, and secures him 
in that possession ; when issued to a claimant, it protects 
him in his claim. In what is the title, presented in this 



JACOB WAELDER. 497 

case, different? It amounts, at best, to an incipient, in- 
choate or imperfect title — which is conceded, by the coun- 
sel, to be its character — though he mfikes the concession 
only for the sake of the argument. But he argues himself 
into a wrong conclusion. He contends that it would re- 
quire an act of the sovereighty, assuming the possession, or 
the manifestation of a desire to do so, while it is held in aU 
the adjudicated cases, that the title remains in the sover- 
eighty of the soil until by some act of the political author- 
ities, they have parted with it. 

" There is one view of this case, which we will present for 
what it may be worth. Cordero issues the imperfect title 
to Mrs. Cubier as the Governor of Coahuila, though he 
represents himself also as Governor ad interim of Texas. 
This might raise a question as to his authority so to repre- 
sent himself; for it is a historical fact, that Coahuila and 
Texas were not united until the adoption of the Constitu- 
tion of 1824. 

" However Texas may have been regarded by the king and 
people of Spain, there are some scraps of history in con- 
nection with its occupation and first settlement, from which 
it mio;ht well be inferred, that the reo;ulations m.ide for the 
government of Louisiana and Florida would be more ap- 
plicable to Texas than any of the other Spanish provinces 
now constituting Mexico. 

"Thus, for instance, the first European visitors to the 
shores of Texas were a colony of French emigrants led by 
La Salle, who landed in Matagorda Bay, and erected a fort 
(Fort St. Louis) on the La Vaca. He was murdered in 
1687. In 1689 Capt, De Leon, a Spanish ofiicer, was dis- 
patched to the La Vaca to hunt out the French. In 1691 
a Spanish Governor of the region was appointed, but in 1693, 
owing to the hostility of the Indians and other causes, the 
settlement was abandoned. The Spaniards at that time had 
settlements at El Paso and at San Juan Bautista, both on 
the right bank of the Rio Grande, but both now within the 
limits of Texas. In 1714 the French again attempted a 
settlement within its limits, and Crogat, to whom Louis 
XIV. had granted the whole of Louisiana, sent an expe- 

32 



498 BENCH AND BAR OF TEXAS. 

dition, which penetrated from the Sabine to the Kio 
Grande. 

" Efforts were made by both France and Spain, with varied 
success, to hold the territory, until in 1763 the feud was 
finally terminated by the cession of Louisiana by France to 
Spain. When, in 1803, Spain re-ceded Louisiana to France, 
the latter ceded it to the United States, and 'as there had 
been no well defined boundary between Louisiana and the 
Spanish possessions west of it, a controversy at once en- 
sued between Spain and the United States,' the latter 
claiming to the Rio Grande. This controversy continued 
until 1819, when in the treaty for the cession of Florida 
the country west of the Sabine was guaranteed to Spain. 
How distasteful this treaty was to the people of the Western 
and Southern States of the Union, is shown by subsequent 
history — by the invasion gotten up in those States. 

" It will be remembered that this claim of the United 
States to the Rio Grande was much discussed about the be- 
ginning and during the war with Mexico, and one of the 
reasons why the annexation of Texas was justified — or 
rather advocated — was that Texas in reality was a portion 
of Louisiana. 

From this part of our early history, it appears that Spain 
herself did not obtain a clear, undisputed title to the Terri- 
tory of Texas until its cession of Florida in 1816. And 
from this it may also be inferred, that although Spain nom- 
inally or really valued the Province it did so in connection 
with its possession of Louisiana, and after the cession of 
the latter, with Florida, until finally its claim to Texas was 
confirmed, its title acknowledged, and the Province was 
united with Coahuila in 1824, as before stated. 

" If that part of our history le<ids to the inference we 
suggest, then the regulations of 1798 were clearly applicable 
to Texas. If, on the other hand, our inference should be 
thought to be incorrect, the royal regulations of 1754, 
and all that has been said in relation to that part of the 
case, necessarily lead us to the same conclusion : that the 
title of Mrs. Cubier was imperfect, and as such can have no 
standing in a judicial tribunal ; that it was never confirmed, 



JACOB WAELDER. 499 

as the law of the time required, and that, therefore, no re- 
covery can be had under it. 

" While we may, and do, give due credit to the ingenious 
and able argument of the counsel, and while we appreciate 
his diffidence in asking the court to take the ' new depart- 
ure ' heretofore alluded to, we must insist that we have 
failed to discover any good reason why the change desired 
&.hould be made. 

'* Believing that the court will adhere to its decision we 
deem it unnecessary — perhaps improper — to say anything 
in regard to the ' other bill of exceptions ' alluded to by the 
counsel for the appellees. 

" In relation to the defendants who have not appealed, we 
will simply say — lest it might be thought there was slight 
error in the judgment of this court — that the defendants, 
against whom the judgment of the District Court was ren- 
dered, were Geo. W. Paschal, the estate of I. A. Paschal, 
and Gideon Lee. These have all appealed. There were 
several other defendants — settlers on the land — ao-ainst 
whom there was no judgment, but a judgment in their 
favor, upon the plea of the statute of limitations. These, 
of course, did not appeal. And as the cause is dismissed 
and they can not be troubled again by new litigation, there 
is no reason why the judgment should be changed as to 
them." 



iJOO BENCH AND BAR Or TEXAS. 



A. W. TERRELL. 



Alexander Watkins Terrell, one of the most gifted 
lawyers of the Texas bar, was born in Patrick County, 
Virginia, on the 3d of November, 1829. His father, 
Christopher Joseph Terrell, a descendant of an old Eng- 
lish family, was also a native of Virginia, and was a 
distinguished physician. His mother was a daughter of 
Joseph Kennedy, of Augusta County, Virginia, and was of 
German ancestry. In 1832 the family immigrated to Cooper 
County, Missouri, where the subject of this sketch was 
reared and received his primary education. He completed 
u thorough course of studies in the University of Missouri, 
and in 1847 began the study of law at Boonville, in the 
office of Judge Peyton R, Hayden, one of the most emi- 
nent jurists in the State. 

He was admitted to the bar in 1849, and began the prac- 
tice of law at St. Joseph, where he pursued his profession 
with distinguished success and rising reputation until the 
year 1852, when his genius and ambition seeking the most 
ample field and "satisfied with nothing but the most inviting 
possibilities, he removed to Austin, Texas, the destined seat 
of a great empire, which spread before him its unbounded 
scope of enterprise and its spacious lap of wealth and pros- 
perity. At Austin he immediately entered upon a brilliant 
career which has been interrupted only by the disorganizing 
throes of revolution and the absorbing energies of civil 
war. In 1857 he was elected judge of the Second Judicial 
District, and in consequence of the trammels of a judicial 
office, though a strong Southerner in soul and sentiment, he 
took no active part in the immediate political measures 
which accomplished secession and precipitated the war. In 
18G3, at the expiration of his term of office, he entered 



A. W. TERRELL. 501 

the Confederate arm}' as lieutenant-colonel of the Thirty- 
fourth Regiment of Texas cavalry, but was soon afterwards 
promoted to the rank of colonel, and commanded that 
regiment until near the close of the war. He led his com- 
mand in the battles of Mansfield, Pleasant Hill, Jenkins' 
Ferry, and other engagements during the campaign against 
General Banks. He was a most efficient officer, and in 
1865 was promoted by General E. Kirby Smith to the 
rank of brigadier-general and was in command of a brigade 
at the termination of hostilities. 

When the war ceased he settled at Houston and resumed 
the practice of law ; but in 1867 retired to his plantation 
in Robinson County, and during several years devoted his 
attention to his planting interests. In 1871 he returned to 
Austin, and has since that time devoted himself to his pro- 
fession and to the duties of a legislator and reporter of the 
Supreme Court. 

In 1875 he was a member of the State Senate, and was 
distinguished for his zealous and able efforts to purge the 
laws of Texas of the degrading features introduced durins: 
the reconstruction regime, and to purify the jurisprudence 
of the State. With this view, his first act was to effect a 
radical improvement in the jury system, by requiring of 
jurors in both civil and criminal cases, the qualification of 
being able to read and Avrite. This law, which is still in 
force in Texas, has greatly curtailed the evil of professional 
jurors, closed the avenues of corruption which converged 
upon the jury rooms, and clothed the attainment of justice, 
at least with the purity of intelligence ; and it would be 
well for the best interest of society if all the other States 
of the South were to follow the example. He was ao-ain a 
member of the Senate in 1879, and was efficient in procurins: 
the adoption of provisions for the erection of the new capital. 

In conjunction with his partner. Judge A. S. Walker, he 
reported thirteen volumes of the decisions of the Supreme 
Court of Texas — from the thirty-eighth to the fifty-first 
volume inclusive, and has since then reported individually 
eleven volumes, including the fift3'-second and sixtv-second 
volumes. He is at present chiefly engaged in the duties of 
State Reporter. 



502 BENCH AND BAR OF TEXAS. 

Judge Terrell is a lawyer of fine ability, and in intellect- 
ual capacity and literary attainment has no superior at the 
Texas bar. He is a fluent speaker, and his culture extends 
to all the departments of science. His analysis of the deci- 
sions of the Supreme Court indicates scholarly ingenuity and ^ 
professional excellence, and his legal and legislative accom- 
plishments have adorned the jurisprudence of the State. 
His speech on private corporations, delivered before the 
literary societies of the University of Missouri in June, 
1885, presents an interesting exposition of the history, 
character and tendencies of these legalized aggregations of 
wealth and power — that they demoralize their owners, 
breed public corruption, and are inimical to independent 
labor and a free ballot. While the discussion of these char- 
acteristics of private corporations has been hackneyed by 
law writers, politicians and writers on political economy. 
Judge Terrell has clothed them with an application to the 
present state of society which has attracted public atten- 
tion and should excite public interest — not that interest 
which is expressed in a hostility to the existence of 
institutions which have developed the country, rescued 
Texas from being the refuge and hiding place of every des- 
perado and criminal that could escape from the older States, 
and planted a village in every inviting valley, and a home 
on every productive hillside ; but that interest which awak- 
ens and asserts individual rights, and a watchful guard 
against any real tendencies which may threaten their detri- 
ment. This done, and politics will be found to be the only 
influence that can endanger the liberties of a free and intel- 
ligent people. 



GEORGE GOLDTHWAITE. 503 



George Goldthwaite. 



The subject of this sketch was born in Spartansburg dis- 
trict, South Carolina, on the 27th of May, 1830. His 
father, Robert H. Goldthwaite, was a native of Massachu- 
setts, but removed to South Carolina at an early age and 
became an able lawyer at the bar of that State. In the 
latter part of his life he retired from the practice and de- 
voted himself to the duties of a planter, on a farm in Mont- 
gomery County, Alabama. Here George Goldthwaite was 
reared until he was fourteen years of age, and at the death 
of his father which occurred about this period, the family 
being in reduced circumstances, he found himself thrown 
upon his own resources and dependent upon his own exer- 
tions to obtain an education. 

But undaunted by his prospects and the difficulties which 
surrounded him and armed with an unswerving determina- 
tion he sought the first avenue which presented to him the 
path of independence and success, and in 1844 entered upon 
the duties of a clerk in a mercantile house in the city of 
Montgomery. He pursued this occupation, devoting his 
leisure hours to miscellaneous reading and to the study of 
law until the year 1853, when he immigrated to Texas and 
located at Houston, when he again entered a mercantile 
house as book-keeper, and served in this capacity four 
years, continuing in the meantime to read law ds the duties 
of his position afforded him opportunity. During this 
time he was married to Miss Louisa Stone, daughter of a 
Presbyterian minister, and gained the inspiration and en- 
couragement of an accomplished and noble companion in 
his efforts to obtain a place and a name among men. In 
1858 he was admitted to the bar and spent several months 
traveling through the State in search of a promising location 



504 BEXCH AND BAR OF TEXAS. 

for the j)ursuit of his profession, but finally returned to 
Houston, where he began his practice and continues to re- 
side. 

As a lawyer Mr. Goldthwaite occupies an eminent posi- 
tion at the bar of Texas — a place fully commensurate with 
the hopes and aspirations of his youth. Trained from his 
early youth in the school of self-reliance his virtues were 
shaped by the mould of circumspection and invigorated by 
the demands of necessity. His early life was stamped 
with a fixed purpose and his ambition inspired indefatigable 
effort. With a strong and resolute hand he tore away the 
obstacles that lay in his path and pushed onward to a noble 
destiny. Devoted to the duties of his profession, he has 
never held or sought political or military preferment, 
though he has always been a thorough Democrat, and 
deeply imbued with the views and sentiments which dic- 
tated the policy of the Southern people in their efforts to 
free themselves from the hostile and aggressive elements of 
the Northern portion of the Union. 

After the war Mr. Goldthwaite resumed the pratice of 
law at Houston. He had before that time been employed 
as the regular attorney for the Texas Central Railroad 
Company, and has since then devoted himself chiefly to its 
service. He has, therefore, been engaged in many of the 
most important railroad cases that have come before the 
courts of the State, in which he has been remarkably suc- 
cessful, and is considered one of the best corporation 
lawyers in the country. 

He is a man of staunch integrity, of conscientious pur- 
pose and ardent convictions, and his talent, energy and 
perseverance have gained him the reputation of being ot»e 
of the most invincible practitioners at the Texas bar. 




s-^ 




jYlc^^c^ 'kiM..^ ^.^^^^ 



N. W. BATTLE. 505 



N. W. BATTLE. 



Nicholas William Battle was born in Warren County, 
Georgia, on the 1st day of January, 1820. His father was 
a Methodist clergyman of reputation, who removed to 
Georgia, when a young man, from Nash County, North 
Carolina, where his ancestors, who were of French origin, 
settled prior to the war of the Revolution, one of whom 
was captain of a company in the Continental army. The 
subject of this sketch enjoyed liberal advantages in the best 
country schools of Monroe County, Georgia, in which he 
was reared, and in 1842 graduated at William and Mary 
College, in Virginia, where he also took the course of law. 
Returning to Georgia he continued his legal studies under 
the supervision of Judge A. M. Spae, an able jurist, and 
in 1844 was admitted to the bar at Macon, and entered 
upon his practice at Forsyth. He soon attained an enviable 
position at the bar, which increased his aspirations and 
stimulated his ambition for professional achievements. 
The prospects of Texas charmed his view, and in 1850 he 
removed to Waco, which has ever since been his home. 

The Texas courts thronged with litigation of land 
matters, and criminal cases arising from a spirit of specu- 
lation and the heterogeneous society of a new and rapidly 
populating country, afforded him an ample field, and he 
soon acquired a large practice, and stepped into the line of 
professional promotion. In 1854 he was elected district 
attorney, and was re-elected in 1856. In 1858 he was 
elected judge of the district, but resigned his position in 
1862 and entered the Confederate army as lieutenant- 
colonel of the Thirtieth Regiment of Texas cavalry, and 
served in the field during the remaining period of the war. 
He was an excellent disciplinarian and a gallant officer who 



506 BENCH AND BAR OF TEXAS. 

enjoyed the highest respect of his superiors and invoked 
on more than one occasion their complimentary official 
notice. 

At the close of the war Judge Battle returned to Waco 
and resumed his practice. He had always been a State's 
rights Democrat of the straightest school, a strict construc- 
tionist of the Constitution, and a nullifier, and while in the 
main he adhered to his old Democratic faith, he promptly 
accepted the arbitration of the sword and the new features 
which it had wrought upon the constitution. He gave up 
the old Federal Union with the reserved rights of the 
States, and accepted the permanent supremacy of the 
national government with its consolidated power, which he 
deemed revolutionary to attempt to evade. 

In 1874 he was appointed by that excellent judge of 
official competency and merit, Governor Coke, judge of the 
criminal district comprising the jurisdictions of Waco, 
Marlin and Calvert, which expired on the adoption of the 
Constitution of 1876. In this capacity he was highly 
efficient in enforcing order and suppressing crime in the 
midst of an abnormal lawlessness arising from the unsettled 
state of society during that period. It is said that during 
the time of his incumbency of the district bench combina- 
tions existed in some of the counties composing his district 
of a character which threatened to overawe the court and 
thwart the course of justice, and that he met the threats 
and menaces of mob law with as much stern defiance and 
indignation as did Lord Mansfield when, in response to 
similar efforts to control his opinion in the case of Rex v. 
Wilkes, that great judge took occasion to make the follow- 
ino- illustrious observations from the bench : — 

" I pass over the many anonymous letters I have received. 
Those in print are public, and some of them have been 
brought judicially before the court. Whoever the writers 
are they take the wrong way. I will do m}^ duty unawed. 
What am I to fear? What mendax infamia from i\iG press 
which daily coins false facts and false motives. The lies of 
calumny carry no terror for me. I trust that my temper 
of mind, and the color and conduct of my life, have given 



N. W. BATTLE. 507 

me a suit of armor aoraiiist these arrows. If durins: this 
king's reign, I ever supported his government and assisted 
his measures, I have done it without any other reward than 
the consciousness of doing what I thought right. If I have 
ever opposed them, I have done it upon the points them- 
selves, without mixing m party oy faction^ and without any 
collateral views. I honor the king and respect the people ; 
but many things acquired by the favor of either, are, in my 
account, objects not worth ambition. I wish popularity, 
but it is that popularity which follows, not that which is run 
after. It is that popularity which, sooner or later, never 
fails to do justice to the pursuit of noble ends by noble means. 
I will not do that which conscience tells me is lorong, upon 
this occasion, to gain the huzzas of thousands, or the daily 
praise of all the papers which come from the press. I will 
not avoid doing what I think is right, though it should draw 
on me the whole artillery of libels, all that falsehood and 
malice can invent, or the credulity of a deluded populace 
can swallow. I can say with a great magistrate, upon an 
occasion and under circumstances not unlike, ' ego hoc am- 
ino semper fai, ut invidiam virtute partam gloriam, non 
invidiam, putarem.' The last end that can come to any 
man never comes too soon, if he falls in support of the 
law and liberty of his country, for liberty is synonymous to 
law and government." 

" They, the leaders of mobocracy," said Judge Battle, 
" they would make a Jeffries of me ! They would trans- 
form the courts of a peaceful State into the bloody assizes 
of two centuries ago. But I defy their threats on the one 
hand and scorn their blandishments on the other, as I de- 
spise the cowards who do their beck and bidding ! " 

In spite of every obstacle and adverse influence he fol- 
lowed the track of the law with unswerving steps, left to 
his successor an unspotted ermine and resumed the practice 
of his profession without means and with a briefless docket ; 
but the same energy, perseverance and principles of in- 
tegrity which had gained him distinction as an advocate 
and eminence as a judge soon restored his practice and 



508 BENCH AND BAR OF TEXAS. 

crowned his career with additional success, and his repu- 
tation as a lawyer continues in a brilliant ascendency. 

While on the bench Judge Battle decided many important 
and interesting questions, one of which was the novel is- 
sue that a free negro could not under the laws of 
Texas contract for the sale of himself into slavery, and that 
all such contracts were ab initio null and void. This opinion 
was affirmed by the Supreme Court in Westbrook v. The 
State, reported in 24 Texas, 563. He has also been en- 
gaged as counsel in some of the most important cases that 
have come before the courts, notably that of Spurlock v. 
Sullivan, 36 Texas, 511, in which are discussed the rights 
of intervenors and the question of equitable intervention, 
and the unreported case of Hough v. Barret, involving the 
title to three leagues of land in the Brazos valley, which 
pended nineteen years in the District Court and which he 
finally gained. 

Judge Battle was married in 1846 to Miss Mary Ann 
Cabaniss, daughter of Hon. E. G. Cabaniss, an eminent 
jurist of Georgia, who was elected to Congress soon after 
the surrender, but was with the other Southern members 
refused his seat, in view of the new and arbitrary system of 
reconstruction which Congress had at that time determined 
upon. To the noble qualities and superior accomplish- 
ments of this lady he attributes largely his professional 
eminence and success in life. 

While it can not be said that Judge Battle is endowed 
with any extraordinary gifts or special brilliancy of genius, 
he possesses in a high degree the qualities indispensable to 
the attainment of eminence in any sphere of life, and with- 
out which genius is a delusive and oftentimes an unfortunate 
possession. He posesses a capacity for cautious, pains- 
taking and indefatigable labor, which, guided by intellectual 
vigor, a sound judgment and a conscientious purpose, al- 
ways dives to the depth of investigation, and never fails to 
bring up the gems of truth and justice from its bottom. 
Hence his briefs are always searching and well argued. As 
a judge he was noted for promptness and precision, his 



N. W. BATTLE. 509 

plain, earnest and cogent style of oratory, which makes 
him formidable as an advocate before a jury, gave to his 
charges and decisions upon the bench a clearness of reason 
and directness of force which always met with a compre- 
hending response and concurrence in the mind of common 
sense and conscientious conviction, while his personal amia- 
bility and suavity of manner lenified the sternness of the 

juclge. 

Judge Battle is a Baptist in his communion, ibut is one of 
that better class of denominational sectarians who holds the 
faith with all Christians "in unity of spirit," and in the 
bonds of fellowship. 



510 BENCH AND BAR OF TEXAS. 



Marcus d. Herring. 



The subject of this sketch was born in Holmes County, 
Mississippi, on the 11th of October, 1828. His early 
associations were chiefly with the Choctaw Indians who were 
devoted friends to his father and, with the exception of 
two or three white families, were his only neighbors. In 
1836 his father moved to Carrollton and was the first cir- 
cuit court clerk of Carroll County. He held this position 
for many years and afterwards served several terms in the 
Legislature of Mississippi, the House of Representatives 
and in the Senate. M. D. Herring began his education 
in the office with his father, in which he early learned 
the clerical business of the courts and was inspired with the 
ambition to become a successful lawyer. In 1840, when 
but twelve years of age, he witnessed the proceedings of an 
important and exciting criminal trial, which quickened his 
aspirations and he determined to apply himself at once to pre- 
paration for the bar, and from that time to the present has 
devoted all his energies and talents to his chosen profession, 
in which success has been the sole aim of his ambition. 
His father was equally desirous that he should be a physi- 
cian, and offered him the most flattering inducements to 
adopt the study of medicine ; but he was a boy of self-will 
and resolution, and nothing could induce him to swerve from 
his determination, or mar the prospects which he pictured 
for himself at the bar ; and he argued his convictions so earn- 
estly that his father finally yielded to his desires, and placed 
him at school at Judson Institute in Carroll County, under 
the tuition of Reuben Nason, a friend and classmate of 
Sergeant S. Prentiss, and who came with him to Mississippi. 
In 1845, he entered the junior class in Centenary College, 
at Jackson, Louisiana, and was prepared to graduate in 




^^^-^mLhUJ}^ 



MARCUS D. HERRING. 511 

1847 ; but a majority of his class having been thrown back 
one year, the minority, of which he was one, through sym- 
pathy for their fellow-classmates, declined graduation. 
During the last year of his collegiate course he read law 
under the president of the college, David O. Shattuck, for- 
merly a distinguished judge in Mississippi. 

On leaving college, and finding his means exhausted, he 
returned to Carroll County and taught school to enable him 
to continue the study of law and acquire a thorough prepa- 
ration for the bar. In 1848 he was admitted to the practice 
of his profession at Carrollton, receiving his license from 
Chancellor Cocke, and soon afterwards removed to Shreve- 
port, Louisiana, where after fitting up a law office in the most 
meagre and primitive style, he had but five dollars remain- 
ing, and no friend or acquaintance in the city. In this con- 
dition, the proprietor of the hotel at which he was boarding 
demanded that he should pay a month's board in advance. 
With these terms he could not comply, but the landlord was 
inexorable, and giving him his last five dollars which settled 
his bill to that date, with feelings of indignation and 
without his dinner, he started in search of more generous 
quarters. On crossing the street he met a physician, who 
occupied an adjoining office, and told him of his situation 
and the circumstances that had befallen him. The kind 
doctor became at once interested in the young stranger and 
escorted him to a boarding-house kept by a sister of the 
famous James Bowie, between which and the hotel existed 
:i strong and avowed rivalry. He told her of his poverty- 
-stricken condition and of his treatment by the hotel-keeper. 
She was both amused and pleased by his narrative of the 
circumstances and received him as a boarder on trust ; but 
the next week, through the kindness of Col. Thomas S. 
Land, who had served in the Legislature of Mississippi with 
his father, and who was subsequently one of the judges of 
the Supreme Court of Louisiana, he received a retaining 
fee of seventy-five dollars, which he immediately paid to 
his generous and noble-hearted landlady as the first install- 
ment for his board. Col. Land continued to interest 



512 BENCH AND BAR OF TEXAS. 

himself in his welfare and afterwards admitted him to co- 
partnership. 

In the fall of 1850, Mr. Herring's health having failed 
at Shreveport, he started on horseback to Cameron, Texas, 
in search of a new and more salubrious locality, and dur- 
ing his journey one of those circumstances occurred which, 
though slight and apparently without indicative importance, 
often changes the tide in the affairs of men and fixes human 
destiny. While passing through Shelby County his horse 
fell through a bridge, causing him a serious injury which 
delayed him some time at Shelbyville; and during his con- 
finement at that place some persons who had been arrested 
upon the charge of murder were brought to his hotel. He 
accepted a retainer for their defense at the examining trial, 
and engaged to defend them at the ensuing term of the 
District Court. This circumstance caused him to locate at 
Shelbyville, where he practiced until the spring of 1854, 
when he settled at Waco, which has since then been his 
permanent home. While at Shelbyville he extended his 
practice throughout the old Fifth District, which at that 
time contained some of the most eminent lawyers the Texas 
bar has ever produced, and he often met as assisting or op- 
posing counsel J. Pinckney Henderson, O. M. Roberts, Wm. 
B. Ochiltree, Thomas J. Rusk, Thomas J. Jennings, Richard 
S. Walker and other lawyers of distinction. This field 
would have been a severe and exacting test of any quality 
of genius, but Mr. Herring was equal to the demands which 
the conditions of success made upon him, he stemmed the 
tide of talent that swept around him and gradually rose 
to distinction. 

When the Civil War began in 1861 he enlisted as a private 
soldier in one of the first volunteer companies raised in 
Texas for the Confederate service. He was soon after- 
wards elected captain and served three years and nine 
months in the field, chiefly in the Trans-Mississippi depart- 
ment. At the close of the war he quietly but vigorously 
resumed his practice at Waco, which he has since extended 
to all parts of the State, particularly in land litigation and 



MARCUS D. HERRING. 513 

criminal cases, in which he has been peculiarly successful. 
In 1854 he was employed on the part of the defendants in 
the celebrated suit of Lasseley v. Eliphas et al., in the 
United States District Court at Austin. In consequence of 
the interestedness of the presiding judge, John C. Watrous, 
the venue was changed to New Orleans where the case 
was argued by Mr. Herring, as leading counsel, before 
Judges Campbell and McCaleb. The plaintiffs obtained 
judgment, and an appeal was taken to the Supreme Court 
of the United States in which, upon bills of exceptions 
prepared by Mr. Herring, it was argued by Mr. Judah 
P. Benjamin. This case is reported in 20 Howard, 264, 
and it is evident that, while Mr. Benjamin was a great civil 
law and commercial lawyer, he knew nothing of the pecu- 
liar system of Texas land laws and did not fully compre- 
hend the character of the exceptions ; and had Mr. Herring 
who had fought the suit from its inception been employed 
at Washington the study of the features of the case sug- 
gests the probability of a different result. 

He has been employed generally for the defense in many 
important and exciting criminal trials. Soon after the war 
he prosecuted Colonel Meyers, his son David and Wash. 
Handy for the murder of William Milican at Bryan. The 
case hinged upon the evidence of a son and brother, Allen 
Meyers, whose testimony in chief acquitted the defendants, 
but upon a searching cross-examination by Mr. Herring 
they were convicted. This was the first conviction for 
murder that had ever been effected in Brazos County. 
Afterwards John Milican, brother of William, killed Meyers, 
and before he could be tried he was killed at night in the 
streets of Milican. Mrs. Balldridge, a daughter of Meyers, 
and his son, a lad of thirteen years, were indicted for Mili- 
can' s murder and were vigorously prosecuted by Colonel 
Hutchinson, of Houston, and other able lawyers, but Mr. 
Herring effected their acquittal. Early one Sunday morn- 
ing in the spring of 1870, Eugene Carter, a bright boy of 
fourteen years, and step-son of General Thomas Harrison, 
was found murdered in his bed in a store-house in Waco, in 
which he was employed. There was a light burning in his 



514 BENCH AND BAR OF TEXAS. 

room, and it was evident that it was the work of a burglar. 
There was no evidence to identify the murderer, but the 
whole country was upon the alert for the least suspicion, 
and about three years afterwards a man named Hunnicutt 
was arrested in Hill County and charged with the crime. 
He was stationed at Waco as the captain of Governor 
Davis' police at the time of the deed, and as circumstances 
somewhat pointed to him, public opinion was pronounced 
as to his guilt. The trial lasted eleven days and a verdict 
of guilty was rendered against the prisoner ; but there was 
great conflict in the testimony and a new trial was granted. 
When this took place Mr. Herring, who did not believe 
the man guilty, spoke an entire day in his defense. He 
was acquitted and his innocence was afterwards univers- 
ally conceded. 

Among the most important reported crimmal cases' in 
which Mr. Herring was leadins; counsel for the defense are 
James v. The State, 3 Court of Appeals, 437, and Sinims v. 
The State, 10 Court of Appeals, 132. Those parties were 
twice convicted of murder, and both finally acquitted, 
chiefly through his strenuous exertions in their behalf. 

"While Mr. Herring has been highly successful, and has 
acquired a handsome competency by his practice, he values 
his reputation far above all his other successes, which is to 
him a source of pleasure and pride as well as profit. He is 
a kind-hearted, generous and sympathetic man, and seems 
to value his attainments and influence chiefly for the oppor- 
tunities they afford him for doing good. He is conse- 
quently held in high esteem by his neighbors, as well as by 
his brother members of the bar. Hon. -D. A. Kelley, an 
old acquaintance of Mr. Herring, says of him: "He has 
always borne the reputation of a successful lawyer, equally 
qualified in every department of the profession ; whetlier in 
the civil or criminal sphere, whether in the ofl5ce or forum, 
whether in court or out of court, he stands in the front rank 
of his profession as an able and experienced lawyer. 

" He is possessed of wonderful energy, perseverance and 
will power, working day and night in the cause which he has 
espoused, and has frequently been the means of uprooting 
and overturning a strong current of adverse public opinion 



MARCUS D. HERRENG. 515 

and set it coursing in the opposite direction. His energy 
never flags, and no adverse circumstance, no mutter how 
forbidding or apparently discouraging, seems ever to break 
his aim or thwart his purpose. He pursues his conceived 
duty with all the ardor of a devotee, equally regardless of 
opposition, whether fostered by public or private opinion, 

" He is a speaker of considerable magnetic power, and 
always has something good to say, which he clothes in chaste, 
forcible and flowing language, and is equally entertaining 
in private as a conversationalist as he is in public as a 
speaker. 

" He has a heart full of sympathy and charity, always ready 
to encourage those who are afilicted or in distress, and 
always listens with patience and credulity to the story of 
those who have been wronged or who have encountered mis- 
fortune ; so much so that he has often suffered pecuniarily 
at the hands of the deceitful and unworthy. 

" No widow or orphan ever applied to him without relief 
and no poor person was ever turned away because of his in- 
ability to secure a cash retainer. He has often defended 
persons charged with crime without the hope of reward, 
having been imbued and impressed with the story of their 
innocence." 

In addition to these sterling personal qualities he pos- 
sesses mental traits peculiarly adapted to the requirements 
of his profession, which he has cultivated by systematic 
training and close application. He possesses an inquisitive 
and highly analytical mind and keen powers of perception, 
which penetrate the depth of every question of law or fact 
that engages his attention. He is consequently always pre- 
pared for any turn which a case may take, and therefore 
fortified against surprise or novel development. 

He was married at Waco in 1856 to Miss Alice G. Doug- 
lass, a lad}' of culture and the most amiable qualities, who 
has been to him a faithful helpmate in promoting his aspi- 
rations and encouraging his endeavors. He is a zealous 
member of the Baptist Church, and an enthusiastic Mason, 
and one of the pionsers of the Odd Fellows' fraternity in 
Waco, in which order he has held the highest honors in the 
State. 



516 BENCH AND BAR OF TEXAS. 



Charles Stewart. 



Charles Stewart is a native of the State of Tennessee, 
and was born in the city of Memphis, on the 30th of May, 
1836. His father, who was of Scotch origin, was a native 
of Culpeper County, Virginia, and was by trade a house 
carpenter; but he was a man of great intelligence, remark- 
able especially for his knowledge of political history, and 
being a forcible and fluent speaker, was often engaged in 
discussing the political questions of his day, especially in 
advocacy of the doctrines of the Whig party, of which he 
was an ardent supporter. 

Charles Stewart came to Texas with his father, who set- 
tled in Galveston in 1845. His educational opportunities were 
only such as were afforded by a private school in the coun- 
try; but he was early inspired with a desire and determina- 
tion to promote his condition in life, and having inherited 
in a marked degree the natural gifts of his father in fluency 
of oratory and fondness of discussion, he directed his 
aspirations towards the former. 

In 1852 he began the study of law in the office of James 
W. Henderson, and completed his preparation for the bar 
under the supervision of Messrs. Bullinger & Jones, of 
Galveston. In 1854, when not yet eighteen years of age, 
he was licensed by the Supreme Court and began the prac- 
tice of his profession at Marlin, where he soon attained a 
high stand at the bar, and such a degree of popular esteem 
and confidence, that, in 1856, he was elected district attor- 
ney of the Thirteenth Judicial District, and was re-elected 
in 1858, as a just recognition of his efficiency. 

While devoting all his energies to the duties of his pro- 
fession and official station, Mr. Stewart was a staunch advo- 
cate of Southern views in regard to the questions which 



CHARLES STEWART. 517 

jigitated the public mind at that period, and Avas a member 
of the convention of 1861, in which he voted for the ordi- 
nance that withdrew Texas from the Federal Union, and 
sealed the rectitude of his intentions and conscientious views 
by a prompt personal acceptance of the gan^e of battle. 
He served faithfully during the war, first in the Tenth Regi- 
ment of Texas infantry, and afterwards in Baylor's Regiment 
of cavalry, and at its close as promptly accepted the inev- 
itable attributes of the issue, and without remorse resumed 
the duties of his profession. 

In 1866 he removed to Houston, where he has since re- 
sided, and of which he was, in 1874, elected city attorney. 
He was chosen to represent that district in the State Senate 
in the Sixteenth and Seventeenth Legislatures, and distin- 
guished himself by his strenuous and able efforts in the 
interest of free public education. In 1882 he was elected 
to the Forty-eighth Congress, and was re-elected to the 
Forty-ninth Congress in 1884, of which he is now a brill- 
iant and rising member. His report from the Committee 
on Foreign Affairs, in the Honse of Representatives of the 
Forty-eighth Congress, in regard to commercial relations 
with South and Central America is an able document, and 
in the light of subsequent and present events highly impor- 
tant and interestinor. Havinoj submitted a substitute bill 
embodying the views of his committee as to the most prac- 
tical method of promoting their relations, Mr. Stewart pre- 
sented in his report an exhaustive statistical exhibit of the 
value of the commerce of these countries, and its unequal 
distribution between the United States and other countries, 
and havinff referred to the statements of intellio-ent travel- 
ers that, " from the little pin with which the lady fastens 
her ribbons to the grand piano with which she enlivens and 
enchants the hearts of her household ; from the tiniest 
thread and tack, and tools needed in the mechanical arts, to 
the largest plows and harrows, and other agricultural imple- 
ments and machines required on the farm ; the wares and 
fabrics, light groceries and delicacies in common demand ; 
the drugs and medicines in the shops of the apothecaries ; 
the liquors and wines of the saloons; the stationery and 



518 BENCH AND BAR OF TEXAS. 

fancy goods of the book stores ; the furniture in the parlors 
and the utensils used in the kitchens, are in these countries, 
with rare exceptions, of English, German, Spanish, or 
Italian manufacture, and yet inferior to the corresponding 
articles of American make." His report proceeds: — 

"This condition of thincrs ouo;ht to be chang^ed at the 
earliest possible moment ; and there should be no balance 
of trade against us in our commerce with these countries, 
and in order to effect such u chansre in our commercial rela- 
tions with Central and South America, the committee earn- 
estly recommends the adoption of the substitute herewith 
reported, believing that it will serve to initiate such policies 
as will be of great advantage, not only to the people of this 
country, but to the inhabitants of Central and South 
America. 

" Our commercial relations with Mexico are satisfactory. 
From the tabular statement herein given it appears that the 
foreign commerce of Mexico, both exports and imports, 
amounted in the aggregate during the past year to the sum 
of $58,125,000, and that nearly one-half of this commerce 
was done with the United States. It also appears that for 
the year ending June 30, 1883, that with Mexico there was 
a balance of trade in our favor amounting $7,021,000. Our 
proximity to Mexico has had much to do with building up 
our commerce with that country ; but much more is due to 
the liberal and progressive spirit with which the Mexican 
government has been actuated in encouraging and protect- 
ing the investments of American capital. 

"Already American enterprise is actually engaged in con- 
structing railways in Mexico, and to-day one may go from 
New York, all the wa}^ by rail, to the city of the Montezumas. 
The construction of these reads has infused new life and 
energy into Mexico, and her rapid increase in wealth and 
material prosperity is assured. But Mexico reaps not all 
the benefits resulting from these investments of American 
capital, for our commerce with that country has greatly 
increased and is continually enlarging. 

"Why may not like results be obtained in the States of 
Central and South America by the investment of American 



CHARLES STEWART. 519 

capital and the application of American energy? The idea 
of building a railway from the United States to the Argen- 
tine Republic is somewhat startling to those who have never 
given the subject a thought, but a little reflection will con- 
vince any one that no insuperable obstacle is in the way of 
such an enterprise. A railroad from some point in Texas, or 
elsewhere in this country where a connection is formed with 
the railroad system of the United- States to the City of 
Mexico, and thence through the Republic of Mexico and 
Central America, and along the Isthmus of Darien, passing 
east of the Andes through South America to the Argentine 
Republic, would meet with but few natural obstacles in the 
way of its construction, and the distance will not exceed six 
thousand eight hundred miles, and may be shortened to six 
thousand miles by commencing its construction at the City 
of Mexico, where it will connect with roads already built or 
in process of construction. Distance and natural obstacles 
have never thwarted American enterprise in the construc- 
tion of railways. * * * From Gautemala and Honduras 
to Chili and the Argentine Republic, embracing the several 
independent and progressive commonwealths of Salvador, 
Nicaragua, Costa Rica, Colombia, Venezuela, Equador, 
Peru, Bolivia, Brazil, Paraguay, and Uruguay, the conditions 
of topography, soil, climate, population, productions, and all 
other circumstances, actual and prospective, are believed 
to be such as to invite and fully justify the construction of 
the great line of railway suggested by this bill, and when it 
is constructed our commerce will be enlarged to such an 
extent as at this time to defy anything like a correct estimate 
of its value ; and then we will be in a position to say to 
European governments, in the memorable words of Presi- 
dent Monroe : ' That we should consider an attempt on 
their part to extend their system to any portion of this 
hemisphere as dangerous to our peace and safety.' " 

It is a pity that our legislation, both State and Federal, 
has not been shaped more by the dictates of enterprise and 
the views of genius ; but the spirit of progress is abroad 
in the land, and the development of our national resources 
and jidvantages championed by such men as Mr. Stewart in 



520 BENCH AND BAR OF TEXAS. 

Congress, and promoted by the able statesmen who now 
guide the helm of government, will assume a shape and 
pace commensurate with the destinies of our country, and 
it is doubtless but a question of time when a railway will 
connect New York and Chicago with Rio de Janeiro and 
Buenos Ayres. 

As a lawyer, Mr. Stewart has been eminently successful 
in both branches of the profession, and has been engaged 
in many important cases, both civil and criminal, before 
the Texas courts. Among the most noted, perhaps, are 
The State v. Walker and Black, which has been several 
times before the Supreme Court as well as before the 
Court of Appeals, and the case of The State v. Grissom, 
which has been before the Court of Appeals twice. He 
was appointed by the court to defend a negro woman, then 
a slave, charged with murder, which he zealously under- 
took, though there was great prejudice against her. She 
was convicted and sentenced to be hanged, but in the midst 
of severe criticism he appealed her case, and she was finally 
acquitted. It was the case of Elizabeth v. The State, 27 
Texas, 329. His briefs were argued by Judge Hancock, 
who attended to the case for him before the Supreme 
Court, and hence Mr. Stewart's name does not appear in 
the report of the appeal. The most interesting case, per- 
haps, in which he has been engaged was that of The State 
V. O'Brien, tried before the Criminal District Court of 
Harris County in 1876. The defendant had found his 
wife, a beautiful woman, in a house of ill-fame, and upon 
her refusing to leave the place, he deliberately shot her to 
death. The defense was emotional insanity, and the de- 
fendant was acquitted. 

He is thoroughly familiar with the Texas land system 
and the laws of corporations, and has been engaged in 
many important suits against railroads, as well as in land 
litigation. He has been associated in practice with several 
gentlemen of ability. His first copartnership was with 
Thomas P. Aycock, at Martin, in 1857, which continued 
until his removal to Houston in 1866, where he became 
associated with D. U. Barziza, and practiced with him until 



CHARLES STEWART. 521 

1874, when the connection was dissolved by mutual con- 
sent, and Mr. Stewart formed a partnership with J. B. 
Likens, which continued until the death of the latter in 
1878. He then received G. H. Breaker into a firm with 
him, which continues to exist. 

Mr. Stewart was married at Marlin in 1860 to Miss 
Rachel Barry, and, like most men who have achieved em- 
inence and success,' he is greatly indebted to the encourage- 
ment of the amiable and accomplished lady who early 
shared his fortunes and shaped his aspirations. In 1883 
he was made Grand Master of Masons in Texas, and is 
devoted to the interests of the fraternity. In social life 
he is generous, open and kind, ready and jDrompt to render 
any assistance in his power to whomsoever may deserve or 
need it, and few men are held in higher esteem by the 
community in which they live. 



522 BENCH AND BAR OF TEXAS. 



ALEXANDER WHITE. 



This venerable lawyer was born in Franklin, Tennessee, 
on the 16th of" October, 1816. His father was of Scotch 
origin, a native of Jefferson County, Virginia, and a dis- 
tinguished lawyer. He settled in Alabama prior to the 
organization of the State government, and was subsequently 
one of the circuit judges who composed the Supreme Court 
of the State. Alexander White was reared at Court land, 
Alabama, where he early enjoyed the advantages of good 
schools, and was prepared for a collegiate course. In 1833 
he was placed in Jackson College, and was afterwards sent 
to the University of Nashville, but left the latter institution 
in 1836, when in his senior year, and joined the army of 
General Jackson, then engaged in the Florida War. At 
the close of the campaign, in 1837, he returned to Alabama 
and located at Talladega, where he immediately began the 
study of law, and so vigorous was his application that in 
one year he was admitted to the bar. He began his prac- 
tice in 1838, and was married during the same year to 
Miss Eliza J. L. McCauley, of Benton County, Alabama. 
He soon acquired a good practice, but yielding to the allure- 
ments of the opportunity which his ability and popularity 
opened to him, he turned his attention to politics, and, in 
1851, was elected to represent the Seventh Alabama District 
in Congress, in which he served two years, and in 1856 re- 
moved to Selma, Alabama, where his reputation placed him 
mimediately at the head of the bar. In 1860 he was an 
elector on the Douglas ticket for the Mobile District, and 
made an active and able canvass for his candidate. In pol=- 
itics he was a Clay Whig, and devoted to the preservation 
of the Union. He believed that disintegration, or the 
power of dissolution, as verified by the experience of all 
republics and confederations of free States, was the source 



ALEXANDER WHITE. 523 

of consolidation and despotism, and he advocated these 
principles in many speeches to the people of Alabama 
But upon the secession of his State he promptly cast his lot 
with the Confederacy, and entered the service as a private 
in Hardee's battalion of mounted infantry, and was taken 
prisoner at the battle of Selma. 

Returning to his State at the close of the war, and devot- 
ing himself to its recuperation, he was chosen in 1865 a 
member of the Alabama Constitutional Convention, and in 
1872 was elected on the Republican ticket to a seat in Con- 
gress, as the representative of the State at large. In 1875 
he was appointed by President Grant Chief Justice of the 
Supreme Court of Utah. This position he filled with great 
ability, and his decisions upon the important questions grow- 
ing out of the Mormon system, elicited the highest com- 
mendation from the press and people of the States. 

In 1876 Judge White removed to Texas and located at 
Dallas, where he has taken a high stand at the bar and en- 
joys a fine practice. He is a thorough lawyer and a man 
of unquestionable talent and ability. Mr. Burder, in his 
sketches of distinguished men of Alabama, compliments 
his professional attainments in glowing terms, and says that 
he had long stood in the front rank of the bar of that State, 
and that some of his arguments before the court and appeals 
to juries were the most powerful ever heard in Alabama. 
AYhile he has been an assiduous student of his profession, 
h^ has cultivated other branches of literature and is a man 
of culture and scholarly attainments. 

Having lost his first wife in 1851, he was again married 
in 1855 to Miss Narcissa S. Rodgers, of Wilcox County, 
Alabama, the present accomplished and devoted companion 
of his old age. He is in religion a strict Presbyterian, a 
Socrates in moral ethics, and in manners a courteous and 
polished gentleman. While his decided political opinions, 
and the candor and boldness with which he has always ad- 
vocated his views have some times incurred the rancor of 
collision and party strife, he has always maintained a just 
and honorable intercourse with his fellow-men, and enjoyed 
the personal esteem of his bitterest opponents. 



524 BENCH AND BAK OF TEXAS. 



THOMAS Harrison. 



The subject of this sketch was born in Jefferson County, 
Alabama, on the 1st of May, 1823, but in his early youth 
removed with his father's family to Monroe County, Mis- 
sissippi, where he was reared and educated; and if ever 
the beacons of parental virtue shed hallowed light along 
the pathway of youth, he has had the noblest incentives 
for vio-orous and virtuous exertion in the strife for em- 
inence. The author knew his father, Isham Harrison, 
well, and he was one of the best men he ever knew. He 
was known in Mississippi as " Father Harrison," and, as a 
model of Christian meekness and philanthrophy, was held 
in the highest respect and veneration by all ages and classes 
of people. 

Thomas Harrison removed to Texas in 1843', and soon 
afterwards began the study of law in the office of his 
brother-in-law, William H. Jack, of Brazoria County; and 
when he had prepared himself for the bar he returned to 
Mississippi and located in Aberdeen, and began the practice 
of his profession with the view of returning to Texas after 
having acquired some professional experience among his 
old friends and neighbors. 

But the Mexican war, which was just beginning, kindled 
in his bosom a spirit of patriotism which no restraints 
could control, and, in 1846, he enlisted in McClung's com- 
pany, in the First Kegiment of Misj*issippi Rifles, com- 
manded by Jefferson Davis, and participated in the heroic 
capture of the fortifications of Monterey. At the expira- 
tion of his term of service — one year — he removed to 
Houston, Texas, and in 1850-51 represented Harris County 
in the Legislature ; but being attracted by the thrift and 
prospects of Central Texas, he located in 1851 at Marlin, 



THOMAS HARRISON. 525 

in Falls County, and in 1855 settled at Waco, which he has 
made his permanent home. 

In 1857 he was induced by his friends to become a can- 
didate for district judge in opposition to Judge R. E. B. 
Baylor, who had long been a popular incumbent of that 
office, and after an active canvass was defeated by a small 
majority. 

In 1860 he was elected captain of a volunteer company 
organized in Waco, and was sent by General Houston on a 
campaign of six months' service in the reofiment of Colonel 
Dalrymple against the Indians on the frontiers along the 
Pease, Prairie Dog, and Canadian Rivers. While engaged 
in this service he was mainly instrumental in compelling 
the surrender of the United States troops at Camp Cooper, 
whose stores were a timely contribution to the operations 
of the campaign. This was perhaps the first attack made 
by State troops upon the forces of the general government, 
and removed at the outset a garrison which might have 
become the nucleus for an invasion of the State. In 1861 
he was chosen captain of a company of cavalry organized 
at Mileau for the Confederate service, and joined the regi- 
ment of Colonel B. F. Terry, at Houston, afterwards 
known as the famous " Texas Rangers." This regiment 
was ordered to proceed at once to Bowling Green, Ken- 
tucky, and upon its reorganization at that place. Captain 
Harrison was elected major, and from that time his career 
was identified with that of the gallant Terry. Slowly win- 
ning his way by meritorious conduct, he was promoted to 
lieutenant-colonel, then colonel, and, finally, to the rank 
of brigadier-general of cavalry, and gained the distinc- 
tion of being one of the most efficient officers in the army. 

His services at Shiloh were conspicuous. He covered 
the rear of the Confederate army when, on the second da}', 
it retired from the field, and with two hundred of his 
" Rangers " charged and broke the pursuing cavalry of the 
enemy, striking and so confusing the van of the advancing 
infantr}^ that the pursuit was immediately abandoned. He 
commanded a brigade of cavalry at the battle of Murfrees- 
boro, with which he penetrated the enemy's lines, capturing 



526 BENCH AND BAR OF TEXAS. 

a number of pieces of artillery and a large quantity of 
stores, which he brought out after receiving positive orders 
to return. He afterwards participated in the capture of 
Murfreesboro by General Forest, and having served with 
distinguished efficiency through the severe campaign of 
General Longstreet against Knoxville, styled the " Valley 
Forge" of the war, at its close he was recommended for 
promotion to the rank of brigadier-general by his superior 
in command. General Armstrong, who characterized him as 
the best colonel of cavalry in the army. 

Gen. Harrison led his column in all the great battles of 
the army of Tennessee except that of Missionary Ridge, 
and it was near Rome, Georgia, that the author, who com- 
manded a company of cavalry in Armistead's brigade, first 
met him, and not under very happy circumstances. That 
brigade, commanded at that time by the gallant Col. P. B. 
Spence, had, during two consecutive days, driven back the 
Federal cavalry in its attempts to advance from Rome, 
when Gen. Harrison came up with his brigade and took 
command. In the meantime a corps of Federal infantry 
had entered Rome, and on the third morning moved out in 
heavy force with the cavalry. Their object was to strike 
the line of march of Gen. Hood, who was then moving his 
army around Rome. Gen. Harrison held his position 
tenaciously, though his Texas regiments were once or twice 
driven back by the overwhelming forces of the enemy, and 
it was in making a flank charge upon these lines of infantry, 
ordered by Gen. Harrison, who took them for dismounted 
cavalry, that the author and a large number of his company 
were taken prisoners. Although his lines were finally 
broken and driven back by the desperate odds against him, 
his object was accomplished, and the rear of Hood's army 
passed safely by. 

Gen. Harrison was always at the head of his column, 
and was almost constantly in the presence of the enemy. 
His men were devotedly attached to him and had the ut- 
most confidence in his judgment and gallantry, though he 
was a rigid disciplinarian and exacted the most faithful 
performance of duty ; hence his command was always well 



THOMAS HARRISON. 527 

guarded and he never suffered a sui'prise. He was severely 
wounded and had several horses killed under him, but he 
considered himself the property of the service and devoted 
to the exigencies of war, and he shunned no danger, evaded 
no hardship, and withheld no effort which the cause he 
espoused demanded. After the surrender of the army of 
Gen. Lee, he endeavored to transfer his command to the 
department of Gen. Smith, but on learning that he, too, 
had surrendered, his command was paroled and disbanded 
at Macon, Mississippi, and he returned with his men to 
Texas. 

In 1866 he was elected district judge and served with 
eminent satisfaction to the bar and the people, but was 
removed by the military authority in 1877 as one of the 
incorrigible obstructions to the Congressional plans; but 
really, as in all the other instances of a like character men- 
tioned in this work, in a spirit of revenge and to make 
way for the promotion of some Northern adventurer or to 
reward Southern infidelity. 

He was one of the Democratic electors of Texas during 
the Presidential campaign of 1872, and since that time has 
devoted himself exclusively to the practice of his profes- 
sion and the supervision of his farm. He is a good lawyer 
and a safe counselor, but his strongest professional quali- 
ties are those of a successful advocate. He is a man of 
great independence of character, frank and positive in the 
expression of his. views, tenacious and conscientious in his 
convictions, and faithful in the discharge of his duties and 
obligations, both as a lawyer and citizen. These qualities 
render him popular professionally and socially, and he is a 
man hio^hly esteemed in every circle and in all the relations 
of life. He was married at Waco, in 1858, to Miss Sallie 
E. McDonald, a niece of Gov. John Ellis, the well known 
Governor of North Carolina during the war, a lady of most 
excellent qualities, and this event has been felicitous both 
to his happiness and prosperity. 



528 BENCH AND BAR OF TEXAS. 



James M. Anderson. 



James Monroe Anderson was born in Lawrence County, 
Alabama, on the 30th day of July, 1824. His parents were 
natives of Virginia, and his father was by occupation a 
merchant. He removed from Alabama to Winchester, Ten- 
nessee, in 1827, where the subject of this sketch spent his 
early youth. At the age of twelve years he engaged in 
business as a clerk, in order to procure the necessary means 
for obtaining an education, and having accomplished his 
object, and thoroughly prepared himself, he entered Cum- 
berland University and graduated at that institution in 1848. 
He then taught school nearly two years, and a portion of 
that time instructed the advanced classes in Winchester 
Academy. While engaged in this vocation he devoted his 
leisure time to the study of law, under the supervision of 
Judge Nathan Green, afterwards chief justice of Tennessee, 
and in the fall of 1849 was admitted to the bar at Winchester, 
where he commenced his practice. 

But his immediate prospects in the mountains of Tennessee 
were not commensurate with his ambition — the opportun- 
ities for the exercise of his genius too uncertain for his 
aspirations, and, in 1850, he removed to Texas, and located 
at Eusk, in Cherokee County, where he formed a copartner- 
ship in the practice of law with Judge Stockton P. Donley, 
which continued, with the interruption caused by war, until 
1866, when the latter was elevated to the Supreme bench. 

Mr. Anderson has always been a staunch Democrat, and 
was an ardent advocate and supporter of the policy of the 
Southern States in severing their connection with a govern- 
ment hostile to their interests and constitutional rights. He 
was a member of the Texas Secession Convention of 1862, 
and voted emphatically for the measures it adopted ; and 



JAMES M. ANDERSON. 529 

when General Banks organized his expedition for the in- 
vasion of Texas from the Eed River, he entered the Con- 
federate army as a private, and participated in the battles 
which resulted in the defeat of that general. 

After the termination of the war, accommodating himself 
as far as possible to the exigencies of the issue, he resumed 
the duties of his profession, and, in 18<36, removed to Waco, 
where he has contiimed to reside, in the enjoyment of a 
large and successful practice. In 1873 he was elected a 
member of the Legislature, and, with this exception, has 
never permitted the emoluments of office or public honors 
to allure him from the zealous duties of the bar. 

At Waco he has attained additional distinction as a law- 
yer and eminence as a citizen. He is an excellent judge 
of law, a discreet and able practitioner, and a kind-hearted, 
congenial man. He is faithful and thorough in the dis- 
charge of his professional duties, and when his views have 
once been established by exhaustive research and confirmed 
by a sound judgment, he holds on to his cases with a ten- 
acious grip, and pursues them as long as there is a hook 
of possibility upon which to hang a thread of hope. These 
well known attributes establish for him a reliability in 
difficult cases which draws to his practice many of the 
most important suits that are brought before the courts 
of his section. 

His social characteristics consist of a serene, even-tem- 
pered and patient deportment, which never permits his 
equanimity to be disturbed by those little adverse currents 
of circumstance which are so often sources of annoyance 
and perplexity to the greatest and most philosophical men ; 
and of a spirit of accommodation and concession to the 
views and feelings of others, which, if more prevalent, 
would render the world better and happier, and elevate 
the society of men. 
31 



530 BENCH AND BAR OF TEXAS. 



W. S. HERNDON. 



William S. Herndon is a native of Georojia, and removed 
with his parents to Texas in 1851, and for several years 
assisted his father in clearing a farm upon the frontier, but 
he possessed a fondness for books and a precocious thirst 
for knowledge, and during the intermission of his farm 
labors read and reread all the books in the limited library 
of his father, including the Bible, with which he became re- 
markably conversant. In 1854 his ambition burst the re- 
straints of the circumstances which surrounded him and he 
determined to prepare himself for the profession of law. 
His father abetted his desires with his slender means, and 
he was placed in McKensie College, where he graduated 
with honor in 1859. He was a diligent student and early 
learned the value of methodical employment of his time, 
and was admitted to the bar in a few months after he began 
the study of law, receiving the commendation of the court 
and the committee of lawyers, who examined him, for his 
thorough knowledge of fundamental principles. Having 
exhausted his means in his efforts to reach the bar he began 
the practice of law at Tyler under the gravest difficulties, 
which no doubt proved the best school for his efforts and 
shaped his subsequent attainments and success. 

He was an ardent devotee of the Southern cause and 
when the war began in 1861, left his office and enlisted as 
a private soldier in the Confederate army but soon after- 
wards attained the rank of captain and served faithfully 
until the close of the war. He then returned to Tyler and 
finding himself again penniless determined to begin life 
anew, and devoted all the energies of his nature to the 
attainment of professional distinction and success. In 
1865 he formed a copartnership with Judge J. C. Robertson, 



W, S. HERNDON. 531 

and this firm has been one of the most successful in the 
State. 

In 1871 the political prospects of Texas were gloomy. 
Nearly every native Texan had been removed from office 
by the military authority as being " an obstructionist " and 
the Democrats scarcely held an office in the State. In the 
First Congressional District the Republicans had a large 
majority and scouted the possibility of defeat, but a Dem- 
ocratic convention held at Rusk, in Cherokee County, unani- 
mously nominated Mr. Herndon as candidate for Congress. 
His energy and determination were the only omens of suc- 
cess ; besides he possessed ample means to meet the demands 
of the canvass, and he accepted the hazardous honor and 
boldly entered the apparently hopeless contest. He im- 
mediately threw down the gauntlet to his opponent, met 
him on the hustings in a hundred places in the district and 
discussed with him before the people the issue of the cam- 
paign. Every Democrat gathered in his ranks, converts 
flocked to his standard and it was soon apparent that his 
strength was growing with hopeful progress. He aroused 
every effort of his party. He was thoroughly familiar 
with the Republican party — its history, its rise and its 
purposes, and he exposed its false principles and hollow 
pretensions to the view of reason and common sense, and 
at the close of the canvass his success was assured. He 
was elected by a majority of more than four thousand 
votes and permanently planted once more the Democratic 
standard in his district. He was re-elected to the Forty- 
third Congress by more than five thousand majority over 
his Republican competitor. 

The sagacity and energy which gained him success at 
the bar rendered him an able and useful member of the 
National Congress, and he was particularly noted for his 
efficient services in the committees of which he was a mem- 
ber. He was an excellent parliamentarian and was fjimiliar 
with the ethics and tactics required to advance the meas- 
ures he favored and retard those which he opposed. 

On his retirement from Congress in 1875, he returned to 

vigorous practice of his profession, and since that time 



532 BENCH AND BAR OF TEXAS. 

his success at the bar has continued to increase and he has 
acquired a large fortune as well as professional distinction. 
His capacity for labor, his fine business qualities and superb 
management of difficult cases, have gained him a wide popu- 
larity and invited an extensive patronage, and his practice, 
especially in land cases, embraces many counties of the 
State. 

He was chosen a member of the State Convention held 
at Galveston in 1876, in which he took a prominent part, 
and was sent as a delegate to the National Convention at 
St. Louis, which nominated Mr. Tilden for the Presidency. 
He was made one of the vice-presidents of that conven- 
tion, and was selected to second the nomination of the 
candidates in an appropriate speech, and performed this 
duty in a manner which elicited commendation and applause. 

In 1878 he was a member of the Democratic State Con- 
vention, which met at Austin, and labored ably and zealously 
in the interest of Governor Hubbard in opposition to the 
wing of the Democratic party lead by Governor Throck- 
morton. Since that time he has declined all opportunities 
for political preferment, and has devoted himself exclu- 
sively to his profession. 

Mr. Herndon is a thorough lawyer and a man of fine 
talents. The natural thirst and inquisitiveness of his mind 
has led him to search not only the depths of legal science, 
but the treasures of varied branches of knowledge, and his 
general culture has kept pace with his professional skill. 

His early success was faithfully abetted by the co-opera- 
tion of an accomplished companion. He was married 
during the first year of his practice to Miss Maria Louisa 
McKellar, of Henderson County, a lady whose qualities 
were peculiarly fitted to promote the sentiments of high 
resolve and encourage noble exertion. He is a man of 
active public spirit and enterprise, and is a warm and lib- 
eral supporter of every object calculated to promote the 
interest of society, and especially the welfare of the com- 
munity in which he resides. 



CHAPTEE IX. 



LEGISLATIVE DATA. 

THE CONSTITUTION OF COAHUILA AND TEXAS — THE TEXAN DECLARA- 
TION OF INDEPENDENCE — CONSTITUTION OF THE TEXAN REPUBLIC — 
ARTICLES OF ANNEXATION. 

The Constitution of the State of Coahuila and Texas, 
adopted at Saltillo on the 11th of March, 1827. 

The Governor of the free State of Coahuila and Texas 
to all its inhabitants — Knoio, that the Constituent Congress 
of the same State has decreed and sanctioned the following 
political Constitution of the free State of Coahuila and 
Texas. 

PRELIMINARY REGULATIONS. 

Article 1. The State of Coahuila and Texas consists in 
the union of all the Coahuiltejanos. 

2. It is free and independant of the other United Mexi- 
can States, and of every other foreign power and dominion. 

3. The sovereignty of the State resides originally and 
essentially in the general mass of the individuals who com- 
pose it; but these do not of themselves execute any other 
acts of sovereignty than those designated in this Constitu- 
tion, and in the form which it prescribes. 

4. In all matters relating to the Mexican Federation, the 
State delegates its faculties and powers to the General Con- 
gress of the same, but in all that relates to the administra- 
tion and entire government of the State, it retains its 
liberty, independence and sovereignty. 

5. Therefore^ belongs exclusively to the same State the 
right to establish by means of its representation its funda- 
mfental laws, comformably to the basis sanctioned in the 
constitutive act and general Constitution. 

( 533 ) 



534 BENCH AND BAR OF TEXAS, 

6. The Territory of the State is the same which compre- 
hends the Provinces heretofore known by the name of 
Coahuila and Texas. A constitutional law shall fix their 
limits with respect to the other a joining States of the Mexi- 
can Federation. 

7. The territory of the State is divided for the present, 
for its better administration, into three departments, which 
shall be — Bexar, which district embraces the whole of the 
territory which corresponds to that called the Province of 
Texas, which alone is a district ; Monclova, which compre- 
hends the district of this name and that of the Eio Grande ; 
Saltillo, which embraces the district of this name and that 
of Parras. 

8. Congress hereafter shall have power to alter, vary and 
modify this division of the territory of the State, in the 
manner it may deem most conducive to the felicity of the 
people. 

9. The Apostolic Roman Catholic religion is that of the 
State ; this it protects by wise and just laws, and prohibits 
the exercise of any other. 

10. The State shall regulate and defray the expenses 
which may be necessary for the preservation of worship, 
in conformity with the regulation of the concordats which 
the nation shall celebrate with the Holy See, and by these 
it shall dictate relative to the exercise of patronage in the 
whole Federation. 

11. Every man who inhabits the territory of the State, 
although he be in transit, shall enjoy the imprescriptible 
rights of liberty, security, property and equality ; and it is 
the duty of the same State to conserve, and protect by laws, 
wise and equitable, those general rights of mankind. 

12. It is also an obligation on the State, to protect all its 
inhabitants in the right which they have to write, print and 
publish freely their thoughts and political opinions, without 
the necessity of examination, revision, or censure, anterior 
to the publication, under the restrictions and responsibilities 
established, or which hereafter may be established, by 
general laws on the subject. 

13. In this State no person shall be born a slave, after 



LEGISLATIVE DATA. 535 

this Constitution is published in the capital of each district, 
and six months thereafter, neither will the introduction of 
slaves be permitted under any pretext. 

14. It is the duty of every man who inhabits the State 
to obey its laws, respect its constituted authorities, and 
contribute to the support of the same State, in the mode 
which it asks. 

15. To the State belongs every species of vacant goods 
in its territories, and those of its intestate inhabitants who 
have no legitimate successor in the manner laid down 
by the laws. 

16. The State is composed only of two classes of per- 
sons, to wit: inhabitants of Coahuila and Texas (Coahuil- 
tejanos), and citizens of Coahuila and Texas. 

17. Those are inhabitants of Coahuila and Texas (Coa- 
huiltejanos) : First. All men born and domesticated in the 
territory of the State and their descendants. Secondly. 
Those born in any other part of the territory of the Feder- 
ation, or those who fix their domicil in this State. Thirdly. 
Those foreigners who are legitimately established in this 
State, be they of what nation they may. Fourthly. Those 
foreigners who obtain from Congress letters of naturaliza- 
tion, or have a domicil in the State, obtained according to 
the law which shall be passed as soon as the Congress of the 
Union fixes the general rule of naturalization, which it ought 
to establish conformably to the twenty-sixth clause of the 
faculties which the Federal Constitution designates. 

18. Those are citizens of Coahuila and Texas (Coahuilte- 
janos) : First. All men born in the State and who are domi- 
ciled in any part of its territory. Secondly. All citizens of the 
other States and Territories of the Federation as soon as 
they become domiciliated in the State. Thirdly. All the 
children of Mexican citizens who have been born out of the 
territory of the Federation and who fix their domicil in the 
State. Fourthly. The foreigners who are actually and 
legally domiciliated in the State whatever may have been 
the country of their nativity. Fifthly. Foreigners who en- 
joy the rights of inhabitants of Coahuila and Texas, have 



536 BENCH AND BAR OF TEXAS. 

obtained from Congress special letters of citizenship — the 
laws will prescribe the merits and circumstances requisite 
for the concession of such. 

19. Those born in the territory of the Federation, and 
those foreigners resident in it (with the exception of their 
children), who, at the time of the proclamation of the pol- 
itical emancipation of the nation, were unfaithful to the 
cause of independence, and emigrated to a foreign country, 
or that dependent on the Spanish government, are neither 
entitled to the rights of domiciliation nor citizenship in 
said State. 

20. The rights of citizenship are lost; First. By acquir- 
ing naturalization in a forjeign country. Secondly. By 
acquiring a station of profit or honor under a foreign gov- 
ernment without permission of Congress. Thirdly. By 
sentence legally obtained, which imposes personal or infa- 
mous punishments. Fourthly. By selling his vote, or buying 
that of another, for himself or for a third person, whether 
in popular assemblies, either as Presidents, Tellers or Secre- 
taries, or in the exercise of any other public functions. 
Fifthly. For having resided five consecutive years out of the 
limits of the territory of the Federation, without commis- 
sion of the general government, or particular one of the 
State, or without its leave. 

21. He that has lost the rights of citizenship can not 
regain them without the express act of restoration by Con- 
gress. 

22. The exercise of the same rights are suspended : 
First. For physical or moral incapacity, previously ascer- 
tained by judicial decision. Secondly. For not being twen- 
ty-one years complete, except those who are married, who 
can enter upon the exercise of these rights from the time 
they contract matrimony, of whatever age they may be. 
Thirdly. For being a debtor to the public funds, the time of 
payment elapsed, legal requisition therefor made and not 
complied with. Fourthly. For having been prosecuted 
criminally, unless the defendant is absolved of the matter, 
or condemned to punishment not painful or infamous. 
Fifthly. For not having an employment, trade, or any known 



LEGISLATIVE DATA. 537 

method of obtaining a livelihood. Sixthly. For not know- 
ing how to read and write; but this shall not take effect 
until the year 1830, with regard to those who hereafter en- 
ter into the rights of citizenship. 

23. The rights of citizenship can only be destroyed or 
suspended for the causes stated in articles 20 and 22. 

24. None but citizens who are in the exercise of their 
rights can vote for popular employments in the State, in 
those instances stated in the law ; and these only can 
obtain the said employments, or any others in the same 
State. 

25. Professional employments form an exception to the 
second part of the anterior article, which employments can 
also be conferred on foreigners. 

FORM OP THE STATE GOVERNMENT. 

26. The object of the State government is the happiness 
of the individuals who compose it, for the end of all polit- 
ical society is no other than the welfare of the associated. 

27. The officers of the government, invested with what- 
ever kind of authority, are no more than mere agents or 
commissioners of the State, responsible to it for their public 
conduct. 

28. The government of the State is popular representative 
federal; in consequence it shall not have in it any hereditary 
office or privilege. 

29. The supreme power of the State is divided for its 
exercise into legislative, executive and judicial, and never 
can these three powers, nor two of them, be united in one 
corporation or power, nor the legislative power deposited 
in one individual. 

30. The exercise of the legislative power shall reside in a 
Congress composed of deputies popularly elected. 

31. The exercise of the executive power shall reside in a 
citizen, who shall be denominated Governor of the State, 
and who shall also be chosen popularly. 

32. The exercise of the judicial power shall reside in the 
tribunals and courts which this Constitution establishes. 



538 BENCH AND BAR OF TEXAS. 

TITLE I. 
• THE LEGISLATIVE POWER OF THE STATE. 
SECTION I. OF THE DEPUTIES OF CONGRESS. 

33. The Congress consists of the deputies which repre- 
sent the State, chosen conformably to this Constitution ; 
its number shall be that of twelve members proprietary and 
six supernumerary members, until the year 1832. 

34. The Congress in that year, and in the last of every 
ten years which follow, shall have power to augment the 
number of deputies, under the standard of one for every 
seven thousand souls. 

35. The election of proprietary deputies and supernu- 
meraries shall be held in all and every one of the districts of 
the State, A law shall fix the number of deputies of one 
and the other class which each district ought to appoint. 

36. To be a deputy, proprietary, or supernumerary, it is 
required to have, at the time of the election, the following 
qualities: First. To be a citizen in the exercise of his rights. 
Secondly. To be of the full age of twenty-five years. Thirdly. 
To be an inhabitant of the State, with residence in it for 
two years immediately before the election. To natives of 
the State it is sufficient to possess the two first requisities. 

37. It is necessary for those not born in the territory of 
the Federation, in order to be deputies, proprietary or 
supernumerary, to have had eight years' residence in it and 
to be worth eight thousand dollars in property, or to have 
an income of some business of one thousand dollars an> 
nually, and the qualifications provided in the foregoing 
article. 

38. There are excepted from the foregoing those born in 
any other part of the territory of America, which in the 
year 1810 depended on Spain, and which may not have 
united itself to any other nation, or remained in dependence 
on Spain ; to those it is sufficient that they have been three 
years, complete, in the Mexican Kepublic, and possess the 
requisites prescribed in article 36. 



LEGISLATIVE DATA. 539 

39. Those can not be deputies, proprietary or supernumer- 
ary: First. The Governor or Vice-Governor of the State; 
the members of the council of government ; the officers of 
the Federation ; the civil functionaries of the State govern- 
ment ; the ecclesiastics who exercise any species of juris- 
diction or authority in some part of the district where the 
election may be held ; foreigners, at the time when war 
may exist between the country of their nativity and 
Mexico. 

40. In order that those public functionaries of the Feder- 
eration, or of the State, comprehended in the anterior 
article, may be elected deputies, they ought absolutely to 
have ceased the exercise of their functions four months 
before the election. 

41. If the same individual should be chosen deputy pro- 
prietary for two or more districts, the election of that dis- 
trict in which he actually resides shall have preference. If 
he does not reside in either, the election of the district of 
his origin shall have preference. If he was neither a resi- 
dent nor a native of some one of the said districts, that 
shall stand which the same elected deputy shall designate. 
In either of these cases, or of the death or inability of the 
deputies proprietary to discharge their functions according 
to the judgment of Congress, their duties shall devolve upon 
the respective deputies supernumerary. 

42. If it shall happen that the same citizen is elected 
deputy supernumerary for two or more districts, in this 
case the same order of preference provided for in the three 
first parts of the anterior article prevails. And in the dis- 
trict which remains without a deputy supernumerary, the 
vacancy shall be filled up by the person who, in the respect- 
ive electoral assembly, had the next greatest number of 
votes. In case of a tie, it shall be decided by lot {suerte). 

43. The deputies, during the discharge of their commis- 
sions, shall obtain from the public treasury of the State the 
compensation which the anterior Congress shall assign ; and 
they shall also receive what may appear necessary for their 
expenses in going to the place of session, and in returning 
from them to their houses on the close of the session. 



540 BENCH AND BAR OF TEXAS. 

44. The deputies at no time, and in no case, nor before 
any authority, shall be responsible for the opinions which 
they manifest in the discharge of their duties. In criminal 
cases instituted against them, they shall be judged by the 
tribunals which will be hereafter mentioned ; and from the 
day of their appointment until they have completed the two 
years of their deputation, they can not be accused unless 
before Congress, which is constituted a grand jury to de- 
clare if there is, or is not, cause for an accusation. In the 
meantime, during the session, the deputies can not be sued 
in civil suits, nor arrested for debt. 

45. During the time of their deputation, counting for this 
purpose from the day of their appointment, they can not 
obtain for themselves any employment from the govern- 
ment, nor shall they solicit it for others, nor even for their 
promotion, except it be in the regular order of office. 

SECTION II. — OF THE ELECTION OF DEPUTIES. 

46. For the election of the deputies, there shall be held 
electoral municipal assemblies, and electoral district assem- 
blies. 

PARAGRAPH FIRST MUNICIPAL ELECTORAL ASSEMBLIES. 

47. The electoral municipal assemblies shall be composed 
of the citizens who are in the exercise of their rights, and 
who may be inhabitants and residents within the limits of 
their respective Ayuntamientos, and no person of this can 
be excused from attending. 

48. These assemblies shall be celebrated the first Sunday 
and the following day, of the month of August, the year 
anterior to the renovation of Congress, in order to nomi- 
nate the electors of the district, who are to choose the depu- 
ties ; and eight days previously, the president of every 
Ayuntamiento, without the necessity of. other order, shall 
call together the citizens of his district, by a proper notice, 
or as may be the custom, that they shall convene to make 
the election at the time and in the form which this Consti- 



LEGISLATIVE DATA. 541 

tution requires, giving prompt notification to the villages of 
the same district for the information of the inhabitants. 

49. In order that the citizens may assist with the greater 
convenience every Ayuntamiento, according to its locality 
and the population of its territory, shall determine the 
municipal assemblies which it ought to form in its limits, 
and in the public places in which they have to be held, des- 
ignatinof the limits of each. 

50. They shall be presided, one by the political chief or 
alcalde, and the remainder by other individuals of the 
Ayuntamiento to whom it falls by lot, and in default of 
those, that corporation shall appoint as president of the re- 
spective municipal assembly an inhabitant of its own dis- 
trict, who shall know how to read and write. 

51. On the aforesaid Sunday in August, at the hour of 
meeting, the citizens, who have convened in the place de- 
signated, shall open the said assembly by appointing from 
amongst themselves, by a majority vote, one secretary and 
two tellers, who shall know how to read and write. 

52. The elections shall be opened on the two days speci- 
fied in article 48 for the space of four hours each day, 
divided between the morning and the evening ; and in every 
one of these assembles there shall be a register, in which 
shall be recorded the votes of the citizens who have convened 
to choose the electors of the district, and the names of the 
voters and those voted for shall be set down in alphabetical 
order. 

53. To be an elector of a district it is necessary to be a 
citizen in the exercise of his rights, of the age of twenty- 
five years complete, to know how to read and write, and to 
be an inhabitant and resident in some part of the district 
the year immediately anterior to the election. 

54. Every citizen shall choose viva voce or by writing the 
respective electors of the district ; in the former case the 
voter shall call the names of those for whom he votes in a 
loud voice, which shall be entered in the list and read by the 
secretary ; and it is indispensable that the votes should be 
written in the register in the presence of the voter. No 



542 BENCH AND BAR OF TEXAS. 

person shall vote for himself in this or any other election, 
under the penalt}^ of loosing the right to vote. 

55. In those districts in which there is to be chosen only 
one deputy there shall be appointed eleven electors, and 
in those in which two or more are to be chosen there 
shall be appointed twenty-one electors. 

56. The doubts or controversies that may arise as to 
whether any person or persons possess the qualification of 
voters shall be decided verbally by the assemby, and its 
decision shall be executed without appeal, for this time 
only ; provided, that such doubt shall not hinge upon the 
provisions of this constitution or other law. Should there 
be a tie in resolving the doubt absolutory sentence shall 
be given. 

57. Should complaint arise that bribery, corruption, or 
force had been used to determine the election in favor of 
particular persons, a public and verbal investigation shall 
be made of the matter, and should it appear that the accu- 
sation is true, those who have committed the crime shall be 
deprived of all voice in the election, and false accusers shall 
suffer the same penalty; and from this judgment there 
shall be no appeal. Doubts which arise as to the quality of 
proof shall be decided by the Assembly, in the manner pre- 
scribed in the preceding article. 

58. Municipal assemblies shall be held with open doors 
and without any guard whatever ; and no individual, what- 
ever his class may be, shall attend them armed. 

59. On completion of the two days for which the election 
is to be kept open, the president, tellers, and secretary of 
each assembly shall proceed to sum up the votes in the reg- 
ister, which each citizen has received, which shall be signed 
by the said officers ; and by this operation the assembly 
shall be dissolved ; and other acts which may be done shall 
not only be considered null, but as an attempt against the 
public security. The said register shall be delivered sealed 
to the secretary of the respective Ayuntamientos. 

60. On the second Sunday of said month of August the 
Ayuntamientos shall convene in their respective halls in 



LEGISLATIVE DATA. 543 

public session. In their presence, and with the assistance 
of the president, tellers, and secretary of the municipal 
assemblies, the registers shall be opened, and after all of 
them have been examined, a general list shall be formed in 
alphabetical order, in which shall be comprehended all the 
individuals voted for, and the number of votes they have 
received. 

61. This list and the certificate which shall be extended 
on the subject, shall be signed by the president of the 
Ayuntamiento, the secretary of it, and the secretaries of 
the assemblies. After which, two copies of the said list 
shall be drawn off and certified by the same persons, one 
of which shall be immediately posted up in the next public 
place, and the other shall be delivered, with the accompa- 
nying official letter of the Ayuntamiento, to two individuals 
appointed by that body to proceed to the capital of the 
district and there form a general classification of the votes 
jointly with the commissioners of the other Ayuntamientos. 

62. On the fourth Sunday in August the commissioners 
of the Ayuntamientos shall present themselves with their 
credentials to the political chief, or, in his absence, to the 
first alcalde of the capital of the district ; and, presided by 
the first or by the second, as the case may be, shall assemble 
ill public session in the town hall ; and, after examining all 
the lists, they shall form a general list of all the individuals 
voted for as electors of the district by the citizens of each 
municipal district respectively, expressing the number of 
votes they have had and the place of their residence. 

63. In order to make this general regulation of votes, 
the concurrence of not less than four of the commissioners 
is requisite. In those districts in which there is not that 
number, the Ayuntamiento of the capital shall name from 
amongst the individuals of his own body the number de- 
ficient. 

64. The citizens who, upon the result of this general 
scrutiny, shall be found to have the greatest number of 
votes on the list, shall be considered chosen constitutionally 
as electors. In case of a tie between two or more candi- 
dates, it shall be decided by lot. 



544 BENCH AND BAR OF TEXAS. 

65. The aforesaid list, and all acts relating to the business, 
shall be attested by the president, the commissioners, and 
the secretary of the Ayuntamiento of the capital of the 
district. Extracted copies of the one and the other au- 
thenticated by the same individuals shall be forwarded by 
the president to the permanent deputation of Congress, the 
Governor of the State, and the different municipalities of 
the district. 

Q6. The same president shall present, without any delay, 
the corresponding certificate to the electors appointed, that 
they may go to the capital of the department on the day 
appointed by the Constitution, in order to celebrate the 
electoral assembly of the same. 

PARAGRAPH SECOND DISTRICT ELECTORAL ASSEMBLIES. 

67. The electoral assemblies of the district shall be com- 
posed of the electors named by the citizens in the munici- 
pal assemblies, who shall assemble in the capital of the 
respective districts with a view of choosing the deputy or 
deputies required to assist in Congress as the representa- 
tives of the State. 

68. Said assemblies shall be holden at the expiration 
of fifteen days from making the general regulation of votes 
mentioned in article sixty-two, the electors convening in the 
town halls or in the building considered most appropriate 
for so solemn an act, with open doors and without a guard, 
and no person of whatever class shall appear armed in said 
assemblies. 

69. They shall be presided over by the police chief, and 
in his default, by the first alcalde of the capital of the dis- 
trict, commencing their sessions by choosing from their 
own body, hy majority of vote, a secretary and two tellers ; 
the president shall then cause the credentials of the electors 
to be read, which shall be the official letters wherein they 
are notified of their appointment. 

70. The president shall then inquire if there be any legal 
nullity on the part of any elector for his being such ; and 
should it be proved in the act that there is, the elector 
shall lose the right of voting. The president shall after- 



LEGISLATIVE DATA. 545 

wards also inquire if any bribery, subornation, or force 
has been used for the election of any particular person, 
and should it be proved in the act that there has, the delin- 
quents shall be deprived of a voice, active and passive, and 
false accusers shall suffer the same penalty. Doubts that 
arise in either case shall be decided by the assembly in the 
manner mentioned in article fifty-six. 

71 . The electors present shall then immediately proceed 
to rhake choice of the deputy or deputies corresponding to 
the district, and they shall be elected one by one, by secret 
scrutiny, by means of slips which each elector shall deposit 
in an urn placed upon a table at the foot of a crucifix, 
after being sworn before the same, and by the president, 
that for deputies to the Congress of the State, he will give 
his vote for those citizens who in his opinion possess the 
qualifications of integrity, probity, and well known adher- 
ence to the cause of the national independence. 

72. On conclusion of the voting, the president, tellers 
and secretary shall examine the votes, and the candidate 
who received more than one-half of the votes shall be 
deputy, constitutionally elected, the president declaring 
such election. Should no one have received the absolute 
majority, the two highest candidates shall be run in a 
second balloting. Should more than two persons have 
received a like respective majority, they shall all be run in 
the second balloting, and the same shall be done when on 
one has received said majority, but all an equal number 
of votes. In all these cases the candidate securino- the 
majority of votes shall be elected ; should there be a tie, 
the balloting shall be reported once only, and should there 
still be a tie, it shall be decided by lot. 

73. Should one individual only have received the re- 
spective majority, and two or more persons an equal number 
of votes, but greater than that of all the others, to decide 
which of them shall run in a second balloting with the 
former, there shall be a second balloting between them, 
and the one who should receive the most votes shall enter 
in competition with the candidate who i-^ceived the re- 
spective majority. In case of a tie the balloting shall be 

35 



546 BENCH AND BAR OF TEXAS. 

repeated, and should there still be a tie, it shall be decided 
by lot. In the second balloting between the one who 
received the respective majority over all the candidates 
and his rival, the provision made in the last part of the 
preceding article shall be observed. 

74. When one person only has received the respective 
majority, and all the rest an equal number of votes, to 
determine which of the latter shall enter in competition 
in a second balloting with the former, the entire provision 
made in the preceding article with this view, in respect to 
those between whom there was a tie, shall be executed ; 
and to determine which of the rival candidates shall be 
elected deputy, the provision of the last part of said article 
shall be observed. 

75. The election of deputies proper having closed, that 
of the substitutes shall immediately follow in the same 
method and form, and the latter having also terminated, a 
list containing the names of all the deputies elected, signed 
by the secretary of the respective assembly, shall be imme- 
diately posted in the most public place. The electoral act 
shall be signed by the president and all the electors; and 
the former, the secretary and tellers shall forward copies, 
substantiated by themselves, to the permanent deputation 
of Congress, to the Governor of the State and to all the 
Ayuntamientos of the district. Said assemblies, as soon 
as they have performed the acts pointed out in this law, 
shall immediately dissolve, and any other in which they 
interfere shall be null, and, furthermore, reputed an offense 
against the public safety. 

76. The president shall also seasonably dispatch the cor- 
responding official letter to the deputies proper and substi- 
tutes, accompanied by an attested copy of the act, to serve 
them as a credential of their election. 

77. No citizen shall decline discharging, from any causti 
or pretext, the duties mentioned in this section. 

SECTION THREE — OF THE SESSIONS OF CONGRESS. 

78. The Congress shall assemble each year, to hold its 
sessions in the place which shall be designated by law, and 



LEGISLATIVE DATA. 547 

in the building which is destined for this object. When- 
ever it may be deemed convenient to change it to another 
phice, it can be done with the accordance of two-thirds of 
tlie whole number of the deputies. 

79. The deputies shall present their credentials to the 
permanent deputation of Congress, in order that they may 
examine them, by comparing them with the testimonies of 
the elections of the electoral assemblies of the district. 

80. On the 28th day of the month of December, of the 
year anterior to the renovation of Congress, the newly 
elected deputies and the members of the permanent depu- 
tation shall meet in public session, and shall choose their 
president and secretary from the said deputation. This 
meeting shall report as to the legitimacy of the credentials 
and qualitications of the deputies, and any doubts that may 
arise on these points shall be definitely determined by a 
majority vote in this assembly; but the individuals of the 
permanent deputation who have not been re-elected shall 
not have a vote. 

81. Furthermore, the deputies shall take before the presi- 
dent an oath that they will observe, and cause to be 
observed, the constitutive act and the Federal Constitution 
of the United States of Mexico, and the Constitution of the 
State, and that they will completely discharge their duties. 

82. In continuation, the deputies shall then proceed to 
choose from amongst themselves, by secret ballot, and by 
an absolute plurality of votes, a president, vice-president, 
and two secretaries, upon which the permanent deputation 
shall cease in all its functions, and those of its members 
not re-elected, having retired, the president of Congress 
shall declare that it is solemnly and legitimately constituted. 

83. For the celebration of the ordinary and extraordinary 
sessions of Congress, the deputies shall meet four days pre- 
vious to its organization, in the manner prescribed in the 
first part of article eighty, in order to resolve in the man- 
ner expressed in the second part of the same article upon 
the legitimacy of the credentials and qualifications of the 
new deputies who present themselves ; and having approved 
of them, the deputies shall immediately take the oath pre- 



548 BENCH AND BAR OF TEXAS. 

scribed by article eighty-one, and shall then proceed to 
make nomination of president, vice-president, and secreta- 
ries, in the same manner as is provided in article eighty- 
two. 

84. The Congress shall open its ordinary sessions on the 
first day of January in every year, and on the first day of 
September in each year following the renovation of the 
same Congress ; the Governor of the State being obliged to 
assist upon so important an occasion, when he shall pro- 
nounce a suitable discourse, which the president of Con- 
gress shall answer in general terms. 

85. On the day after the opening of the ordinary session, 
the Governor shall present in person to Congress a written 
account of the state of the public administration, propos- 
ing such amendments or reforms as may be required in its 
different branches. 

86. The session of Congress shall be held daily, without 
other interruption than those of solemn festivals. All the 
proceedings shall be public, with the exception of those 
requiring reserve, which may be secret. 

87. The ordinary sessions of Congress, commencing on 
the first of Januar}'^, shall continue for that month, and the 
three following, February, March and April, and shall not 
be prorogued to any other month, except in the two follow- 
ing instances: first, by petition of the Governor; and 
secondly, if the same Congress deem it necessary — for 
which there must be the concurrence, in both cases, of two- 
thirds of tlie deputies. The ordinary sessions, which com- 
mence on the first of September, shall last thirty days of 
said month, and shall not be prorogued upon any motion or 
pretext whatever. Both sessions shall be closed with the 
same formalities which are prescribed for their opening. 

88. Before the conclusion of the ordinary session of Con- 
gress there shall be appointed a deputation of that body 
consisting of three members proper and one substitute, 
which shall continue all the intervening time between one 
ordinary session and the other, and its president shall be 
the individual first appointed, and its secretary the last 
proprietary individual named. 



LEGISLATIVE DATA. 549 

89. When in the intervening time between one ordinary 
session and another, circumstances or business shall occur 
requiring the meeting of Congress, it can be convoked in 
extraordinary sessions, provided it is sanctioned by the 
unanimous vote of two-thirds of the members of the per- 
manent deputation and of the council of government, which, 
shall meet for that purpose. 

90. If the circumstances or business which caused the 
extraordinary convocation of Congress should be very 
mighty and urgent, the permanent deputation, united with 
the council of government and the other deputies, who are 
in the capital, shall immediately take such necessary meas- 
ures as the exigencies shall require, and shall give an ac- 
count thereof to Congress as soon as it may meet. 

91. When Congress meets in extraordinary sessions, there 
shall called to the same the deputies who ought to assist at 
the ordinary sessions of that year, and they shall be exclu- 
sively occupied upon the subject or subjects mentioned 
in the letter of convocation ; but if they have not concluded 
by the day on which they ought to meet in ordinary ses- 
sions, they shall postpone those and continue the business 
for which the ordinary session had been convoked. 

92. The holding of the extraordinary sessions shall not 
impede the election of the new deputies at the time pre- 
scribed in this Constitution. 

93. The extraordinary sessions shall be opened and 
closed with the same solemnities as the ordinary sessions. 

94. The resolutions which Congress may take upon the 
change of its residence, or the prorogations of its sessions, 
shall be executed by the Governor without any observations 
upon them. 

95. The Congress, in all that belongs to its government 
and internal order, shall observe the regulations formed by 
the present Congress, having power to make reforms it 
may deem necessary. 

96. The deputies shall be renewed totally every two 
years. Those of the interior Congress can be rechosen, 
but they can not be compelled to accept this trust unless 
there should be a vacancy of one-half of the deputation. 



550 BENCH AND BAR OF TEXAS. 

There shall be excepted in this article the deputies of the 
present Congress, who can not be re-elected for the next 
constitutional Congress. 

SECTION FOURTH THE ATTRIBUTES OF CONGRESS. 

97. The exclusive prerogatives of Congress are : First. To 
decree, interpret, amend and repeal the laws relating to 
the administration and internal government of the State in 
all its branches. Secondly. To regulate the votes which the 
citizens may have obtained in the electoral assemblies for 
Governor, Vice-Governor, and for members of the council 
of government, and to appoint those officers when ever it 
shall devolve upon it to do so. Thirdly. To decideby secret 
ballot the ties that may occur between two or more individ- 
uals in elections to these trusts. Fourthly. To resolve the 
doubts which may arise upon these elections and upon the 
qualifications of those elected. Fifthly. To examine the ex- 
cuses which the elected may allege for not accepting those 
stations and to determine them as it may think proper. 
Sixthly. To form itself into a grand jury and declare whether 
there are, or are not, grounds of accusation for neglect of 
official duty, as well as for ordinary crimes, against the 
deputies of Congress, the Governor, the Vice-Governor, 
the members of the council, the Secretary of the State and 
the members of the supreme tribunal of justice. Seventhly. 
To render effective the responsibility of these public func- 
tionaries, and to do in this case that which is necessary in 
regard to all others in public office. Eighthly. To fix every 
year the public expenses of the State, having in view the 
reports on the subject which shall be presented by the Gov- 
ernor. Ninthly. To establish or confirm the taxes or contri- 
butions necessary to meet these expenses under the regu- 
lations of this constitution, and that of the federation — 
to regulate their collection, determine their application, and 
approve their distribution. Tenthly. To examine and ap- 
prove the accounts of the application of all public funds of the 
State. Eleventhly. To contract debts in case of necessity 
upon the credit of the State and to designate the guarantee 
for their liquidation. Twelfthly. To decree whatever may 



LEGISLATIVE DATA. 551 

be necessary for the administration, preservation and aliena- 
tion of tlie property of the Sttite. Thirteenthly. To create, 
suspend or suppress the public offices of the State, and to 
fix, augment or diminish their salaries or pensions. Four- 
teenthly . To grant premiums or recompenses to corporations 
or persons who may have rendered distinguished services 
to the State, and to decree public honors to the posthumous 
memory of great men. Fifteenthly. To regulate the manner 
of recruiting the men which may be necessary for the ser- 
vice, or to fill the companies of presidential militia, com- 
panies of cavalry, and the active militia of the same army, 
auxiliary to that which is destined for the defense of the 
State by their institution, and approve of the distribution 
which may be made among the tow^ns of the State of their 
respective quotas, to effect this object. Sixteenthly. To de- 
cree that which may be necessary for the enrollino- and 
instruction of the civic militia of the State, and the appoint 
ment of its officers conformably to the discipline prescribed, 
or which may be hereafter prescribed by general laws. 
Seventeenthly. To promote and encourage by laws, public 
information and education, and the progress of the sciences, 
arts, and useful establishments, removing the obstacles 
which may palsy objects so commendable. Eighteenthly. 
To protect the political liberty of the press. Nineteenthly. 
To intervene and give or withhold its consent to all those 
acts and cases for which this Constitution has provided. 

98. The attributes of the permanent deputation are : First . 
To watch over the observance of the constitutive act, Con- 
stitution and general laws of the Union, and the particular 
ones of the State, in order to give an account to Congress 
of any infractions it may have observed. Second. To con- 
voke the Congress for extraordinary sessions in those cases, 
and in the manner described by this Constitution. Third. 
To discharge the functions which are prescribed in articles 
seventy-nine and eighty. Fourth. To give notice to the super- 
numeraries of the time when they shall come to the Congress 
in the place of the proprietary deputies ; and if the death 
or absolute inability of one or more of them should occur, to 



552 BENCH AND BAR OF TEXAS. 

communicate the corresponding orders to the respective 
districts, in order that they may proceed to anew election. 
Fifth. To receive the testimonies of the acts of the electors 
of the electoral district assemblies for Governor, for Vice- 
Governor, and members of the council of government, and 
to deliver them to Congress as soon as it is installed. 

SECTION FIFTH FORMATION AND PROMULGATION LAWS. 

99. The form, internals, and mode of proceeding in dis- 
cussing and voting on projects of law or decree shall be 
provided in the internal rules of Congress. 

100. No project of law or decree that should be rejected 
according to the rules shall be again proposed until the 
ordinary sessions of the year following; but this shall not 
prevent any one or more of their articles from forming a 
part of other projects which have not been rejected. 

101. One more than the half of the entire number of 
deputies shall form a quorum for dictating measures and 
steps not possessing the character of law or decree. For 
discussing and voting upon projects of law or decree, and 
dictating orders of great importance, the concurrence of 
two-thirds of the members shall be required. 

102. Should a project of law or decree, after being dis- 
cussed, be approved it shall be communicated to the 
Governor, who, should he also approve it, shall immedi- 
ately proceed to promulgate and circulate the same with the 
corresponding formalities ; but should he not, he may make 
thereon such observations as he may deem proper, pre. 
viously hearing the counsel, and shall return the same, with 
his remarks, to Congress within ten available days, reckoned 
from its reception. 

103. The projects of law or decree returned by the Gov- 
ernor, according to the preceding article, shall be discussed 
the second time, and the public speaker, whom the executive 
should designate, may attend the discussion. Should they 
be approved by two-thirds of the members present in this 
second discussion they shall be again communicated to the 
Governor, who, without objecting, shall immediately pro- 



LEGISLATIVE DATA. 553 

ceed to their formal promulgation and circulation; but 
should the said projects not be approved in this form they 
can not be again proposed until the session of the year 
following. 

104. Should any project of law or decree not be returned 
by the Governor within the time assigned in article one 
hundred and two it shall be considered from that very fact 
as sanctioned, and shall be promulgated accordingly, unless 
Congress should have closed or suspended its sessions for 
that term, in which case it shall be returned on the first day 
of the next session. 

105. Laws shall be repealed with the same formalities, 
and by the same steps as they are established. 

ELECTION OF DEPUTIES TO THE GENERAL CONGRESS. 

106. The electonU district assemblies, on the same dajs 
and in the same method, as they are required to perform 
the election of deputies to the State Congress, shall pro- 
ceed to elect the individuals who are to choose the deputies 
to the General Congress, choosing, for every seven thousand 
souls, one person possessing the qualifications required by 
article fifty-three of this Constitution. In districts wherein 
there proves to be an excess of population of more than three 
thousand five hundred souls, for this fraction another elec- 
tor shall be chosen, and in those of which the population 
does not amount to seven thousand, one shall be chosen 
notwithstanding. The election having closed said juntas 
shall forward a certified copy of their act to the Vice-Gov- 
ernor of the State, and also a corresponding attested copy 
to each person elected, to serve him as a credential. 

107. The electors thus chosen shall repair to the capital 
of the State, where they shall present themselves to the 
Vice-Governor, or person acting in his stead, and convening 
under the presidence of either, three days previous to the 
first Sunday of October, in public session, in the building 
they consider the most appropriate, they shall choose from 
among themselves two tellers and a secretary that they may 
examine the credentials, and report on the day following 



554 BENCH AND BAR OF TEXAS. 

whether or not they are in conformity to law. A committee 
of three persons shall likewise be appointed, to examine 
the credentials of the secretary and tellers. 

108. On the following day they shall again assemble, the 
minutes shall be read, and should any defect be found in 
the credentials or qualifications of the electors, the meeting 
shall decide without adjourning, and the resolutions thereof 
shall be carried into eifect without appeal, for that time and 
case only, it being understood that the doubt can not turn 
upon any provision in this or any other law. 

109. On the first Sunday of the aforementioned month 
of October, the electors having convened, and one more 
than half of them all being present, they shall proceed in 
the form provided by this Constitution for the election of 
deputies to the State Congress, to the election of those who 
are to represent the State in the General Congress. This 
having been concluded, the meeting shall make the proper 
provision for complying with article seventeen of the Federal 
Constitution, and it shall then dissolve. 

TITLE II. 

EXECUTIVE POWER OF THE STATE. 
SECTION FIRST THE GOVERNOR. 

110. The Governor of the State shall possess the follow- 
ing qualifications at the time of his election : First. He 
shall be a citizen in the exercise of his rights. Second. 
Bornintheterritory of the Republic. Third. Thirty years of 
age complete. Fourth. An inhabitant of this State, having 
resided five years therein, two of which immediately pre- 
ceded the election. 

111. Ecclesiastics, military and other officers of the 
Republic, in actual service, can not obtain the office of 
Governor. 

112. The Governor of the State shall continue four years 
in the discharge of his office, and can not be re-elected to 
the same office, except in the fourth year after having ceased 
the functions of his office. 



LEGISLATIVE DATA. 555 

113. The prerogatives of the Governor, his attributes, 
and the restrictions of his powers, shall be as follows : — 

PREROGATIVES OF THE GOVERNOR. 

First. The Governor may make observations upon the 
laws and decrees of Congress in the manner and form pre- 
scribed by article one hundred and two, suspending their 
publication until said Congress resolves thereon, unless in 
cases excepted by this Constitution. Second. He may pro- 
pose to Congress such laws or amendments as he thinks 
conducive to the general good of the State. Third. He ma}' 
pardon delinquents conformably to law. Fourth. He can- 
not be accused for any crime whatever, committed during 
his term of ofl&ce, and one year after, reckoned from the 
date whereon he ceased in his functions, except before 
Congress, and after the expiration of that time, not even 
before Congress. 

ATTRIBUTES OF THE GOVERNOR. 

First, To take care that the internal order and tranquility 
of the State be preserved, and its safety without — for both 
objects disposing of the militia of the State, of which he 
shall be commander-in-chief throughout the Territory. 
Second. To see that the constitutive act, the Federal and 
State Constitutions, the laws, decrees and orders of the 
general government, and of the Congress of said State, 
be fulfilled, issuing the proper orders and decrees for their 
execution. Third. To form, with the advice of the council, 
such instructions and regulations as he deems necessary for 
the better government of the departments of the public 
administration of the State, which he shall transmit to Con- 
gress for approval. Fourth. To appoint agreeably to the 
constitution and laws, all the officers of State, not chosen 
by the people, or otherwise provided by law. Fifth. To 
freely appoint and remove the Secretary of State. Sixth. 
To see that justice is fully and promptly administered by 
the tribunals and courts of the State, and that their judg- 
ments are executed. Seventh. To take care of the admin- 
istration and collection of all the State rents, and decree 



556 BENCH AND BAR OF TEXAS 

their disposition according to law. Eighth. To suspend 
from office, as long as three months, and deprive of even 
one-half their salary for the same length of time, after 
having the advice of the council, all officers of the execu- 
tive department for violating his orders or decrees, trans- 
mitting the data on the subject to the respective tribunal, 
should he think there is a just ground of action. Ninth, 
To propose to the standing deputation, whenever he thinks 
proper, after hearing the advice of the council, the conven- 
ing of Congress to extra session. 

RESTRICTIONS OF THE POWERS OF THE GOVERNOR. 

The Governor shall not have power: First. To command 
the civic militia of the State in person without the express 
consent of Congress, or, during its recess, of the permanent 
deputation. Whenever he commands the said militia on 
the aforesaid condition the Vice-Governor shall discharge 
the duties of Governor. Second. To interfere in the ex- 
amination of causes pending, or dispose in any manner of 
the persons of those accused in criminal cases, during the 
trial. Third. To deprive any one of his liberty, or impose 
punishment upon him ; but when the well being and safety 
of the State require the arrest of any person, he may effect 
it on condition of putting the person arrested, within forty- 
eight hours, at the disposal of a competent tribunal or 
judge. Fourth. To take possession of the property of any 
private individual or corporation, or disturb him in the pos- 
session, use, or benefit of the same, unless it should be 
necessary for a purpose of manifest public utility in the 
judgment of the executive council, in which case he may do 
so with the concurrence of the council, the approval of 
Congress, and, during the recess, of the permanent deputa. 
tion, always indemnifying the party interested agreeably to 
the opinion of appraisers chosen jointly by the executive 
and the said party. Fifth. To impede or embarrass in any 
manner, or under any pretense, the popular elections deter- 
mined by this Constitution and laws, so that they may not 
have their entire effect. Sixth. To leave the capital to go 
to any other part of the State for a longer time than one 



LEGISLATIVE DATA. 557 

month. Should he require a longer time, or should he be 
under the necessity of leaving the State, he shall request 
license from Congress, and, during recess, from the perma- 
nent deputation. 

414. For publishing the laws and decrees of the Congress 
of the State the Governor shall use the following form : — 

"The Governor of the State of Coahuila and Texas, to 
all the inhabitants thereof : Be it known, that the Congress 
of said State has decreed as follows: [The original words 
of the law or decree to be here inserted.] Wherefore, I 
command it to be printed, published, and duly fulfilled." 

SECTION SECOND — VICE-GOVERNOR. 

115. There shall likewise be a Vice-Governor in the 
State, having the same qualifications as those required for 
Governor ; his term of office four years, and he can not 
be re-elected to the same office until in the fourth year from 
having ceased in his functions. 

116. The Vice-Governor shall preside over the council, 
but without having any vote except in case of a tie. He 
shall also be the police chief of the department of the 
capital ; and when he officiates as Governor the office of 
political chief shall be discharged by a substitute whom he 
shall appoint, provisionally with the approval of the 
council. 

117. The Vice-Governor shall discharge the functions of 
Governor during the vacancy of that office, or when the 
latter in the opinion of Congress or the permanent deputa- 
tion, is impeded from serving. 

118. When the Vice-Governor also fails, the councilor 
whom Congress appoints shall act in the place of Governor, 
Should it be during recess, the appointment shall be made 
provisionally, until the meeting of Congress, by the per- 
manent deputation. 

119. In case of decease or absolute impossibilitj'^ dur- 
ing th^ first two years of exercising their functions, a new 
Governor or Vice-Governor shall be chosen at the time of 
holding the next election for deputies to Congress. 



558 BENCH AND BAR OF TEXAS. 

120. For crimes of any kind whatever, committed dur- 
ing his term of office, the Vice-Governor can be accused 
only before Congress. 

SECTION THIRD OF THE EXECUTIVE COUNCIL 

121. For the better discharge of the duties of his office, 
the Governor shall have a body of consultation to be styled 
Executive Council, which shall be composed of three voters 
proprietary and two substitutes, of whom one only can be 
an ecclesiastic. 

122. For being a member of the council the same quali- 
fications shall be required as for being a deputy. Those not 
eligible as deputies can not be councilors. 

123. The council shall be renewed every two years, one 
voter proper and one substitute, the last chosen, retiring in 
the first instance, and the other members proper and the 
other substitute, in the second instance, and so on succes- 
sively. 

124. No councilor can be re-elected until the fourth 
year from the expiration of his term of office. 

125. When the Governor attends the council he shall 
preside without having a vote, and in that case the Vice- 
Governor shall not attend. 

126. The secretary of the council shall be one of the 
members thereof, in the manner and form provided in its 
internal rules, which the council itself shall form and pre- 
sent to the executive who shall transniit them to Congress 
for approval. 

127. The attributes of the council shall be as follows : — 
First. To give the Governor a written report in all busi- 
ness wherein the law imposes on the latter the duty of 
requesting the same, and in other matters wherein the Gov- 
ernor himself thinks proper to consult said body. Second. 
To watch over the observance of the constitutive act. Fed- 
eral Constitution, general laws of the Union, and the 
particular laws of the State, apprising Congress of any 
violations it may observe. Third. To promote the estab- 
lishment of, and give activity to, all the branches of pros- 
perity of the State. Fourth. To propose nominations of 



LEGISLATIVE DATA. 559 

three for filling those offices wherein the laws exact this 
requisite. Fifth. To concur with the permanent deputation 
agreeable to article eighty-nine, on the convocation of Con- 
gress to extra session, and meet with said deputation for 
the temporary measures that may be necessary in those 
cases mentioned in article ninety. Sixth. To explain the 
accounts of all the public funds, and transmit them to Con- 
gress for approval. 

128. The council shall be responsible for all acts relating 
to the exercise of its attributes. 

SECTION FOURTH ELECTION OF GOVERNOR, VICE-GOVERNOR 

AND COUNCILORS. 

129. On the day following the election of deputies to 
Congress each and every electoral district shall chose a 
Governor, Vice-Governor, three councilors proper and two 
substitutes, holding said election in the mode and manner 
prescribed in former articles of this Constitution. 

130. Said election having closed, a list signed by the 
secretary of the assembly, confirming the names of the 
persons elected and offices for which they were chosen, 
shall be immediately posted in the most public place. The 
acts shall be signed by the President and electors, and at- 
tested copies thereof, authorized by the said President, 
secretary and teller shall be transmitted, enclosed in a cer- 
tified sheet, to the standing deputation. 

131. On the day the first ordinary sessions of Congress 
are opened, the ex-president of the permanent deputation 
shall present the aforementioned attested copies, and after 
they are read, Congress shall choose a committee from its 
own body to which they shall be referred, and said com- 
mittee shall review the same and report thereon on the 
third day. 

132. On said day Congress shall proceed to determine 
the elections made by the districts and compute the votes. 

133. The person who receives the absolute majority of 
votes of the district electoral assemblies to be computed 
according to the whole number of voters composing the 



560 BENCH AND BAR OF TEXAS. 

same, shall be Governor, Vice-Governor, or councilor, as 
the election under consideration may be. 

134. Should no person receive the aforesaid majority 
Congress shall elect for said offices one of the two or more 
individuals having the highest number of votes, and the 
same shall be done when no one has said respective major- 
ity, but all an equal number of votes. 

135. Should one person only receive the respective ma- 
jority, and two or more an equal number of votes, but 
greater than that of all the others, Congress shall elect one 
individual from among the former to be run in competition 
for the election with the person who received the respective 
majority. 

136. In case of tie the balloting shall be repeated once 
only, and should there still be a tie it shall be determined 
by lot. 

137. The offices of Governor, Vice-Governor and coun- 
cilors shall be discharged in preference to any other whatever 
in the State, and shall necessarily have the same pref- 
erence among themselves. Those elected to those stations 
shall take possession thereof on the first of March, and they 
can not decline serving ; except the deputies to Congress at 
the time of the election, and those who, in the judgment of 
Congress, are morally or physically incompetent. 

138. Should the Governor-elect, from any cause, not be 
present on said day to enter on the performance of his 
functions, the Vice-Governor newly chosen shall enter on 
the discharge of the duties of the office, and should he be 
also absent, his default shall be supplied agreeably to arti- 
cle one hundred and eighteen. 

SECTION FIFTH SECRETARY OF STATE. 

139. The dispatch of all business whatever pertaining to 
the executive department of the State shall be under the 
charge of a secretary to be styled — Secretary of State. 

140. For holding said office, it shall be required to be a 
citizen in the exercise of his rights, over twenty-five years 
of age, a native of this Republic, an inhabitant of this State, 



LEGISLATIVE DATA. 561 

with three years' residence therein, and one year imme- 
diatel}' preceding his election. Ecclesiastics can not hold 
said office. 

141. All laws, decrees, orders, regulations and instruc- 
tions circulated to the towns, or directed by the Governor 
to a particular corporation or person, as well as the copies 
emanating from the department shall be authorized by the 
secretary, and without this requisite they shall not be obeyed 
or be productive of faith. 

142. The secretary shall be responsible with his person 
and office for whatever he authorizes with his signature con- 
trary to the constitutive act, the Constitution and general 
laws of the Union, or the particular Constitution and laws 
of the State, and orders of the President of the Republic not 
manifestly opposed to said Constitution and laws, without 
availing him as an excuse, his having done so by order of 
the Governor. 

143. For the internal administration of his office, the 
rules which the secretary shall form, and Congress approve, 
shall be observed. 

144. Said public officer, also the Governor, Vice-Governor, 
and councilors shall cease, during their trust, to discharge 
the duties of an}^ public station they are filling, as soon as 
they have taken possession of their office. 

SECTION SIXTH DEPARTMENT POLICE CHIEFS AND DISTRICT 

CHIEFS. 

145. In the capital of each department of the State 
there shall be an officer charged with the political adminis- 
tration thereof, to be styled Department Police CJiief. 

146. To be a department chief it shall be required to be a 
citizen in the exercise of his rights, to have attained the age 
of twenty-five years, to be an inhabitant of the State, with 
three years' residence therein, and one immediately preced- 
ing his election. 

147. The Governor on the nomination of three persons 
by the council,' supported by reports from the Ayuntamien- 
tos of the respective departments, shall appoint the depart- 
ment chiefs, except the one in the capital. 

36 



562 BENCH AND BAR OF TEXAS. 

148. The chiefs of department shall be immediately siib- 
jett to the Governor, and in no way to each other. 

149. In the capital of each district, exce[)t that in which 
the department chief resides, there shall be furthermore a 
subordinate or district chief, appointed by the executive 
from three persons nominated by the said chief of the de- 
partment. 

150. The subordinate or district chief shall possess the 
same qualifications as the department chiefs, with the dif- 
ference that their domiciliation and residence must be 
within the precincts of the same district, and they shall 
furthermore have some honorable way of making a living, 
sufficient to afford them a suitable support. 

151. The term of office of the district chiefs shall be the 
same as that of the department chiefs, and, on nomination 
by the latter, they may also continue in office, 

152. No one can decline serving in said trusts, except in 
case of re-election to the same within four years from the 
time of serving, or from some other legal cause in the opin- 
ion of the Governor, who shall resolve after hearing the re- 
spective chief of department. 

153. These, as well as the department chiefs, shall be 
responsible for all their acts of omission against the Consti- 
tution and general laws of the Republic, and those of the 
States, the former to said chiefs of department, under 
whose immediate orders they shall act, and the latter to the 
Governor. 

154. The attributes of both chiefs and the manner in 
which they are to exercise the same shall be detailed in the 
regulations for the political economical administration of 
the towns. 

SECTION SEVENTH — AYUNTAMIENTOS 

155. It shall belong to the Ayuntamientos to attend care- 
fully to the police and internal administration of the towns 
of the State, and there shall be Ayuntamientos in all those 
towns where they have before existed. 

156. Ayuntamientos shall be established m towns where 
there are none, wherein it is proper they should exist, and 



LEGISLATIVE DATA. 563 

they shall be established without fail in the district capitals, 
whatever be the population, and in towns which, of them- 
selves, or with the territory they embrace, contain a popula- 
tion to the amount of one thousand souls ; unless said towns 
should be annexed to another municipality, from which it 
may not be proper for them to separate, in order that they 
may have an Ayuntamiento, it shall be so declared by Con- 
gress, after receiving the report of the Governor, and the 
dispatch that shall be formed, assigning the limits that are 
to embrace the new municipality. 

157. Towns that do not possess the population assigned, 
and which find it practicable being advantageously annexed 
to another or others, shall continue to be municipalities, 
and the Ayuntamientos shall be established at the place 
most convenient in the opinion of the executive. 

158. In towns wherein Ayuntamientos can not be estab- 
lished, and which are so distant from the other muicipalities 
that the latter can not attend to the internal administration 
thereof, the electoral juntas of that to which they belong 
shall choose a commissary of police and a sindico pi-ocura- 
dor to discharge the duties assigned them in the regulations 
for the political administration of the towns. 

159. The Ayuntamientos shall be composed of the alcalde 
or alcaldes, sindico or sindicos, and regidores, whose num- 
ber shall be designated in the aforementioned regulations. 

160. To be a member of the A^^untamientos, it shall be 
required to be a citizen in the exercise of his rights, over 
twenty-five years of age, or twenty-one if married, an in- 
habitant within the jurisdiction of the Ayuntamiento, witii 
three years' residence therein, one year immediately preced- 
ing the election, to have some capital or trade whereb}'^ to 
subsist, and to be able to read and write. 

161. Public officers receiving a salary from the State, 
military and other ofi5cers of the general government in 
actual discharge of their duties, and ecclesiastics, can not 
members of the Ayuntamiento. 

162. The alcades shall all be replaced every year, of the 
regidores, one-half their number, and sindicos procuradores 



564 BENCH AND BAR OF TEXAS. 

the same, should there be two, should there be only one, he 
shall be replaced any year. 

163. A person who has performed the duties of said 
trust, can not hold any other municipal office, or be re- 
elected to that which he filled until after two years from 
having; ceased his functions. 

164. The members of the Ayuntamientos shall be chosen 
by the municipal electoral meetings, which shall be- holden 
in the same manner as the municipal meetings established 
for the election of deputies to Congress. The former juntas 
shall be convoked on the first Sunday in December ; and 
they shall meet and perform their duties on the second Sun- 
day and the day following. 

165. Pursuant to the action of said meetings, those 
citizens who have received the greatest number of votes in 
the respective lists shall be considered constituionally 
elected as alcaldes, regidores and sindicos. In case of a tie 
betw^een two or more persons, it shall be decided by lot by 
the Ayuntamiento acting at the time of election. 

166. Should any member of the Ayuntamiento decease, 
or his office become vacant from any other cause, the per- 
son receivinor the highest number of votes in the order of 
tlie resDective list shall succeed him in the discharo;e of the 
duties. 

167. Ayuntamiental offices shall be municipal charges, 
which no one can decline. 

TITLE III. 

ADMINISTRATION OF JUSTICE IN GENERAL. 

168. The administration of justice in civil and criminal 
cases shall belong exclusively to the tribunals and courts 
of justice, which agreeably to the constitution should exer- 
cise the judicial power. 

169. Neither Congress or the Governor can remove cases 
pending from an inferior to a superior court, nor. can the 
tribunals and courts of justice themselves open those already 
concluded. 



LEGISLATIVE DATA. 565 

170. Every inhabitant of the State shall be judged by 
competent tribunals and judges, established prior to the act 
by which he is judged, and in no way b}' special commis- 
sion or retroactive law. 

171. The laws shall regulate the order and formalities to 
be observed in suits at law. These shall be uniform in all 
the courts of justice and tribunals, and no authority can 
dispense therewith. 

182. The tribunals and courts of justice, being authorized 
solely for applying the laws, shall never interpret the same, 
or suspend their execution. 

173. Military men and ecclesiastics, residing in the State, 
shall continue subject to their respective authorities. 

174. No affair shall have more than three processes and 
a like number of determinate decisions. The law shall pro- 
vide which of said sentences shall produce a warrant of 
attorney, and from said sentence no other appeal shall be 
admitted than that of nullity, in the form and for the pur- 
poses the laAV provides. 

175. A judge who has rendered a decision in a case, in 
any process thereof, can not take cognizance anew in any 
other process whatever, or in appeal of nullity interposed 
in said case. 

176. Bribery, subornation and prevarication are grounds 
for public action against the magistrate or judge who should 
commit the same. 

177. Justice shall be administered in the name of the 
State, in the manner the laws prescribe. 

PARAGRAPH ONE ADMINISTRATION OF JUSTICE IN CIVIL MAT- 
TERS. 

178. Every inhabitant of the State shall be perfectly 
free to terminate his controversies, whatever be the state 
of trial, by means of arbitrators, or in any other extra-ju- 
dicial manner. His agreements in this particular shall be 
strictly observed, and the decisions of the arbitrators 
executed, shonld the parties on making the mutual promise 
not reserve the right of appeal. 

175.1. Cases of a small amount shall be terminated by exe- 



566 BENCH AND BAR OF TEXAS. 

entire measures whieh shall be executed without any re- 
course. A particular law shall fix the sum and mode of 
proceeding therein. 

180. In other civil and criminal matters in respect to 
wrongs there shall be a trial by conciliation, and without 
proving that this means has been attempted a trial by writ- 
ing can not be established, except in cases wdiich the law 
itself shall determine. 

PARAGRAPH TWO ADMINISTRATION OF JUSTICE IN CRIMINAL 

MATTERS. 

181. All criminal actions, for light transgressions that 
should be punished by correctional penalties, shall be 
decided by executive judgment without the form or shape 
of trial, and from the result no appe;d or other recourse can 
be interposed. The law shall assign said penalties, and 
determine the crimes to which they correspond. 

182. In grave offenses summary information of the fact 
shall be drawn up authoritatively, without which requisite 
and that of the corresponding consequent warrant that shall 
be notified to the accused, and a copy thereof communicated 
to the jailor, no person can he a prisoner. 

183. Should the judges not be able immediately to fulfill 
the provision of the preceding articles, the person arrested 
shall not be considered a prisoner but in the light of one de- 
tained, and should the jail warrant not be made known to 
him within forty-eight hours, and communicated to the 
jailor, he shall be discharged. 

184. A person who gives bail in said cases, wherein it is 
not expressly prohibited l)y law, shall not be taken to 
prison, and in whatever state of the case it appears that 
corporal penalty can not be imposed on the prisoner, he 
shall be released under bail. 

185. Those who have to declare in criminal matters upon 
their own actions shall do so without being under oath. 

186. All persons may arrest a delinquent in the act and 
conduct him to the presence of the judge. 

187. The greatest care shall be taken that the jails serve 
only for securing, and not for molesting the accused. 



LEGISLATIVE DATA. 56T 

188. Criminal causes shall be public in the manner and 
form the laws provide as soon as it is proposed to receive 
the declaration of the accused in reply to the charges. 

189. The confiscation of property shall forever be pro- 
hibited, and even the seizure thereof can only be effected on 
proceeding in crimes involving a pecuniary responsibility, 
and onl}^ in proportion thereto. 

190. Torture and compulsion shall never be used; and 
penalties imposed, whatever be the crimes, shall never pass 
to the family of him who suffers them, but they shall have 
their effect solely upon the person who deserved them. 

191. No authority of the State can issue a mandate for 
searching the houses, papers, and other effects of the inhabi- 
tants thereof, except in those cases, and in the form, the 
laws provide. 

192. One of the main objects of attention of Congress 
shall be to establish the trial by jury in criminal cases, to 
extend the same gradually, and even to adopt it in civil 
cases in proportion as the advantages of this valuable insti- 
tution become practically known. 

PARAGRAPH THREE THE COURTS OF JUSTICE. 

193. The inferior courts of justice shall continue in the 
manner and form that shall be prescribed by law, until in 
the judgment of Congress the State rents permit the estab- 
lishment of learned judges, who shall be appointed in each 
district. 

194. In the capital of the State there shall be a supreme 
tribunal, divided into three halls, each composed of the 
magistrate, or magistrates, whom the law designated, and 
said tribunal shall have a fiscal, who shall dispatch all the 
subjects of the three halls. Should the hall consist of one 
minister only said special law shall determine whether col- 
leagues should be appointed, and the manner and form in 
which it shall be done. 

195. The two first halls shall take cognizance in the 
second and third processes of civil cases of inferior courts 
of justice, and also of criminal cases according as the laws 
determine. 



568 BENCH AND BAR OF TEXAS. 

196. It shall belong to the third hall : First, to decide the 
power of inferior judges; second, to determine appeals of 
nullity, interposed from executing judgments in first, 
second and third processes; third, to take cognizance in 
all compulsive appeals interposed from the ecclesiastical 
tribunals and authorities of the State; fourth, to examine 
the lists that shall be transmitted to the same monthly 
of causes pending in the first, second and third processes, 
communicate a copy thereof to the Governor, and provide 
for their publication through the press ; fifth, to hear doubts 
of law that occur to the two first halls and to the primary 
tribunals, and communicate them to Congress through the 
channel of the Governor, accompanied by the correspond- 
ing report. 

197. Actions for transgressions in ofiice entered against 
inferior judges, and also those formed for crimes of the 
same kind, and those in general against the deputies of 
Congress, the Governor and Vice-Governor, Councilors, 
Secretary of State, and members of the tribunal of jus- 
tice, shall be opened and closed in all their processes be- 
fore the said supreme tribunal. The law shall mark out 
the other powers of the same in its respective halls. 

198. In case an action ought to be entered against the 
whole tribunal, or any of its halls. Congress shall appoint 
another special tribunal, composed of the corres[)onding 
halls, and the latter of the magistrate or magistrates con- 
sidered necessary. 

199. The special tribunal appointed by Congress for these 
cases shall take cognizance of all appeals of nullity in ac- 
tions of the supreme tril)unal of justice, in those of the 
individuals mentioned in the preceding article, and in sub- 
jects pertaining to the third hall. 

200. To be a magistrate or fiscal it shall be required to 
be a citizen in the exercise of his rights, over twenty-five 
years of age, a native of the republic, and an upright and 
enlightened lawyer. 

201. Both magistrates and fiscal shall be appointed by 
Congress on nomination by the executive. They shall i'e_ 
ceive a competent salary, to be designated by law, and can 



LEGISLATIVE DATA. 569 

not be removed from ofBce except for a legally established 
cause. 

202. The members of the supreme tribunal of justice 
shall be responsiblefor all their proceedings in the discharge 
of their functions, and may be accused therefor before Con- 
gress by any individual of the people whatever. 

TrrLE IV. 

SOLE SECTION THE STATE REVENUE. 

203. The taxes of the individuals composing the State 
shall form its public revenue. 

204. Said taxes may be direct, general, or municipal ; 
but of whatever kind they are, they shall be proportionate 
to the expenditures they are intended to cover, and to the 
property of the citizens. 

205. Taxes can not be levied except for paying the por- 
tion corresponding to the state of the general disbursements 
of the republic, and for covering the particular expenses of 
the State. The taxes for the latter object shall be fixed 
expressly, on the first term of session every year, and ac- 
coiding to pre-estimate to be presented by the Governor 
and approved by Congress. 

206. The present taxes shall continue until their repeal 
be published, and said repeal can not be decreed except by 
Congress. 

207. There shall be in the capital a general treasury for 
the receipt, custody, and distribution of the whole product 
of the State rents. 

208. No disbursement that has not been for covering ex- 
pense approved by Congress, or special order of the Gov- 
ernor, shall be allowed the treasurer in account. 

209. The business rooms of the State revenue shall be 
regulated by particular instructions. 

210. Congress shall choose three individuals every year 
from within or without its own body, to examine the ac- 
counts of the State treasury, and afterwards to i)resent or 
communicate the same, accompanied by their report to 



570 BENCH AND BAR OF TEXAS, 

Congress for approval. tSaid approval, or the resolution 
that should be adopted by Congress, shall be published and 
circulated to the Ayuntamientos, in order that they in turn 
may publish and circulate the same in their districts. 

TITLE V. 
SOLE SECTION CIVIC MILITIA OF THE STATE. 

211. Corps of civic militia shall be established in all the 
towns of the State, and the said corps shall compose the 
military force of the State. 

212. The formation of said corps, their organization, 
discipline, and internal government, shall be regulated by 
Congress in conformity to the provision made on the sub- 
ject by the general laws of the Republic. 

213. Congress shall regulate the service of said militia 
so that while it is adapted to the purposes of its institution 
and to the best interests of the State, it may be as little 
onerous as possible to the citizens. 

214. No Coahuil-Texano can decline lending said service 
when required by law, and in the manner it provides. 

TITLE VI. 

SOLE SECTION PUBLIC EDUCATION. 

215. In all towns of the State a suitable number of 
primary schools shall be established, wherein shall be 
taught reading, writing, arithmetic, the catechism of the 
Christian religion, a brief and simple explanation of this 
Constitution, and that of the Republic, the rights and duties 
of man to society, and whatever else may conduce to the 
better education of youth. 

216. The seminaries most required for affording the 
public the means of instruction in the sciences and arts 
useful to the State ; and wherein the aforementioned con- 
stitutions shall be fully explained, shall be established in 
suitable places, and in proportion as circumstances go on 
permitting. 



LEGISLATIVE DATA. 571 

217. The method of teaching shall be uniform throughout 
the State, and with this view, also to facilitate the same. 
Congress shall form a general plan of public education, and 
regulate by means of statutes and laws all that pertains to 
this most important object. 

TITLE VII. 

SOLE SECTION OBSERVANCE OF THE CONSTITUTION. 

218. The observance of the Constitution in all its parts 
.shall be one of the first and most sacred duties of the in- 
habitants of the State of Coahuila and Texas, and neither 
Congress, or any other authority, can exempt them there- 
from ; and every Coahuil-Texano may demand said obser- 
vance, making a representation with that view to Congress 
or the executive. 

219. For any violation of the Constitution whatever, the 
person who committed it shall be personally responsible. 
In order to render said responsibility effective, Congress 
shall dictate the laws and decrees it thinks conducive to 
that end ; and furthermore, every j^ear in its first sessions, 
take under deliberation the infringements manifested to the 
same by the permanent deputation and executive council, 
and adopt the proper resolution thereon. 

220. The pubhc functionaries of the State, of whatever 
class, shall make oath, on entering in possession of olfice, 
to observe, support, and defend the constitutive act, the 
Constitution of the Republic, and that of the State, and 
faithfully discharge the duties of their office. 

221. Propositions upon amendment, alteration, or repeal 
of any one or more of its articles, shall be made in writing, 
and supported and signed b3^a third part of the deputies. 

222. The Congress, in whose time any of the said propo- 
sitions are made, shall make no further provision during the 
two years of its sessions, than for the reading and printing 
of the same, wilh the original reasons with which they are 
supported. 

223. The Congress following shall receive the proposi- 
tions for said discussion, and accept or reject them ; and if 



572 BENCH AND BAR OF TEXAS. 

accepted, they shall again be printed and circulated by the 
executive to be read in the immediate electoral juntas pre- 
vious to electing deputies to Congress. 

224. The alterations, amendments or repeals proposed 
shall be discussed in the Congress that follows, and should 
the}'' be approved, they shall be immediately published as 
constitutional articles. 

225. For the amendments, alterations and repeals in- 
dicated, besides the rules prescribed in the foregoing arti- 
cles, all those provided for forming and repealing laws, 
shall be observed, with the exception of the right of mak- 
ing observations granted the Governor, which shall not in 
these cases be conceded. 

Santiago del Valle, President. 
Juan Antonio Padilla, Secretary. 



TEXAN INDEPENDENCE. 573 



TEXAS Independence. 



TPIE CONSULTATION. 

On the 15th of August, 1835, the citizens of Columbia, 
Texas, held a meeting, in Avhich it was declared that a con- 
sultation of all Texas through her representatives was 
indispensable; and agreeably to this resolution the citizens 
of the several municipalities of the province elected dele- 
gates to meet in general consultation, at San Felipe de 
Austin on the 13th of October. A number of the dele- 
gates convened on the day specified, but a governor not 
having arrived, the meeting was adjourned to the 1st day 
of November, when after completing its organization in 
consultation on the 7th of November unanimously adopted 
the following ; — 

*' Declaration of the people of Texas in general convention 
assembled 

" Whereas, General Antonio Lopez de Santa Anna and 
other military chieftains have by force of arms over- 
thrown the federal institutions of Mexico, and dissolved 
the social compact which existed between Texas and the 
other members of the Mexican confederacy ; now the 
good people of Texas, availing themselves of their natural 
rights, solemnly declare: — 

" 1st. That they have taken up arms in defense of their 
rights and liberties, which were threatened by the encroach- 
ments of military despots, and in defense of their repub- 
lican principles of the federal constitution of Mexico, of 
eighteen and twenty-four. 

" 2d. That Texas is no longer morally or civill}- bound by 
the compact of union ; yet, stimulated by the generosity 



574 BENCH AND BAR OF TEXAS. 

and sympcathy common to a free people, they offer their 
support and assistance to such of the members of the Mex- 
ican confederacy as will take up arms against military 
despotism. 

" 3d. That, they do not acknowledge that the present 
authorities of the nominal Mexican republic have the right 
to govern within the limits of Texas. 

"4th. That they will not cease to carry on war against 
the said authorities whilst their troops are within the limits 
of Texas. 

" 5th. That they hold it to be their right during the dis- 
organization of the federal system, and the reign of despot- 
ism, to withdraw from the union to establish an independent 
government, or to adopt such measures as they may deem 
best calculated to protect their rights and liberties ; but 
that they will continue faithful to the Mexican government 
so long as that nation is governed by the constitution and 
laws that were formed for the government of the political 
association. 

" Gth. That Texas is responsible for the expenses of her 
armies now in the field, 

" 7th. That the public faith of Texas is pledged for the 
payment of any debts contracted by her agents. 

" 8th. That she will reward by donations in lands all who 
volunteer their services in her present struggle, and receive 
them as citizens. 

These declarations we solemnly avow to the world, and 
call on God to witness their truth and sincerity, and invoke 
defeat and disgrace upon our heads, should we prove guilty 
of duplicity." 

The consultation having thus established a provisional 
government adjourned on November 14th, to meet again on 
the 1st day of March, 1836, unless convoked sooner b}^ the 
Governor and council. It reconvened on the 1st day of 
March at the town of Washington, on the Brazos, and 
proceeded immediately to appoint a committee to draft a 
declaration of independence which made its report on the 
next day. 



THE TEXAS DECLARATION OF INDEPENDENCE. 575 



THE TEXAS Declaration of inde- 
pendence. 



Made at the town of Washington, on the 2d of March, isse 



When a government has ceased to protect the lives, 
liberty and property of the people, from whom its legiti- 
mate powers are derived, and for the advancement of whose 
happiness it was instituted ; and so far from being a guar- 
antee for their inestimable and inalienable rights, becomes 
an instrument in the hands of evil rulers for their oppres- 
sion ; when the federal republican Constitution of their 
country, which they have sworn to support, no longer has a 
substantial existence,' and the whole nature of their govern- 
ment has been forcibly changed, without their consent, from 
a restricted Federative Republic, composed of sovereign 
States, to a consolidated central military despotism, in 
which every interest is disregarded but that of the army and 
the priesthood, both the eternal enemies of civil liberty, 
the ever ready minions of power, and the usual instruments 
of tyrants; when, long after the spirit of the Constitution 
has departed, moderation is at length so far lost by those in 
power, that even the semblance of freedom is removed, and 
the forms themselves of the Constitution discontinued ; and 
so far from their petitions and remonstrances being regarded, 
the agents who bear them are thrown into dunijeons, and 
mercenary armies sent forth to enforce a new government 
upon them at the point of the bayonet. 

When in consequence of such acts of malfeasance and 
abduction on the part of the government, anarchy prevails, 
and civil society is dissolved into its original elements — in 
such a crisis the first law of nature, the right of self-preser- 
vation, the inherent and inalienable right of the people to 



576 BENCH AND BAR OF TEXAS. 

appeal to first principles, and take their political affairs 
into their own hands in extreme cases, enjoins it as a right 
towards themselves, and a sacred obligation to their pos- 
terity, to abolish such government, and create another in 
its stead, calculated to rescue them from impending dangers, 
and secure their welfare and happiness. 

Nations, as well as individuals, are amenable for their 
acts to the general opinion of mankind. A statement of a 
part of our grievances is therefore submitted to an im- 
partial world, in justification of the hazardous, but unavoid- 
able step now taken, of severing our political connection 
with the Mexican people, and assuming an independent alti- 
tude among the nations of the earth. 

The Mexican government by its colonization laws invited 
and induced the Anglo-American population of Texas to 
colonize its wilderness under the pledged faith of a written 
Constitution, that they should continue to enjoy that con- 
stitutional liberty and Republican government to which they 
bad been habituated in the land of their birth, the United 
States of America. 

In this expectation they have been cruelly disappointed, 
inasmuch as the Mexican nation has acquiesced in the late 
changes made in the government of General Antonio Lopez 
de Santa Anna who, having overturned the Constitution of 
his country, now offers to us the cruel alternatives, either to 
abandon our homes, acquired by so many privations, or sub- 
mit to the most intolerable of all tyranny, the combined 
despotism of the sword and the priesthood. 

It hath sacrificed our welfare to the State of Coahuila, 
by which our interests have been continually depressed 
through a jealous and partial course of legislation, carried 
on at a far distant seat of government, by a hostile ma- 
jority, in an unknown tongue; and this, too, notwithstand- 
ing we have petitioned in the humblest terms for the 
establishment of a separate State government, and have in 
accordance with the provisions of the National Constitution, 
presented to the General Congress a republican Constitu- 
tion, which was without just cause contemptuously re- 
jected. 



THE TEXAS DECLARATION OF INDEPENDENCE. 577 

It incarcerated in a dungeon, for a long time, one of our 
citizens, for no other cause, but a zealous endeavor to pro- 
cure the acceptance of our Constitution and the establish- 
ment of a State government. 

It has failed and refused to secure on a firm basis the 
right of trial by jury, that palladium of civil liberty, and 
only safe guarantee for the life, liberty, and property of 
the citizen. 

It has failed to establish any public system of education, 
iilthough possessed of almost boundless resources (the pub- 
lic domain), and although it is an axiom in political science, 
that unless a people are educated and enlightened, it is idle 
to expect the continuance of civil liberty, or the capacity 
for self-government. 

It has suffered the military commandants, stationed 
among us, to exercise arbitrary acts of oppression and 
tyranny, thus trampling upon the most sacred rights of the 
citizen, and rendering the military superior to the civil 
power. 

It has dissolved, by force of arms, the State Congress of 
Coahuila and Texas, and obliged our representatives to fly 
for their lives from the seat of government, thus depriving 
us of the fundamental political right of representation. 

It has demanded the surrender of a number of our citi- 
zens, and ordered military detachments to seize and carry 
them into the interior for trial, in contempt of the civil 
authorities, and in defiance of the laws and the Constitution. 

It has made piratical attacks upon our commerce by com- 
missioning foreign desperadoes, and authorizing them to 
seize our vessels, and convey the property of our citizens 
to far distant ports for confiscation. 

It denies us the right of worshiping the Almighty accord- 
ing to the dictates of our own conscience, by the support 
of a national religion, calculated to promote the temporal 
interest of its human functionaries, rather than the glory of 
the true and living God. 

It has demanded us to deliver up our arms, which are 
essential to our defense — the rightful property of free- 
men — and formidable only to tyrannical governments. 

37 



578 BENCH AND BAR OF TEXAS. 

It has invaded our country both by sea and land with in- 
tent to lay waste our territory, and drive us from our homes ; 
and has now a large mercenary army advancing to carry on 
against us a war of extermination. 

It has, through its emissaries, incited the merciless savage, 
with tomahawk and scalping knife, to massacre the inhab- 
itants of our defenseless frontiers. 

It has been, during the whole time of our connection with 
it, the contemptible sport of successive military revolutions^ 
and hath continually exhibited every characteristic of a 
weak, corrupt and tyrannical government. 

These and other grievances were patiently borne by the 
people of Texas until they reached that point at which for- 
bearance ceases to be a virtue. We then took up arms in 
defense of the National Constitution. We appealed to our 
Mexican brethren for assistance ; our appeal has been made 
in vain ; though months have elapsed, no sympathetic re- 
sponse has yet been heard from the interior. We are, there- 
fore, forced to the melancholy conclusion that the Mexican 
people have acquiesced in the destruction of their liberty, 
and the substitution therefor of a military government. 

The necessity of self-preservation, therefore, now decrees 
our eternal political separation. 

We, therefore, the delegates, with plenary powers, of the 
people of Texas, in solemn convention assembled, appealing 
to a candid ivorld, for the necessities of our condition, do 
hereby resolve and declai'e that our 'political connection with 
the Mexican nation has forever ended, and that the people 
of Texas do now constitute a Free, Sovereign and Inde- 
pendent Republic, and are fully invested with all the rights 
and attributes which properly belong to independent nations; 
and, conscious of the rectitude of our intentions, we fear- 
lessly and confidently commit the issue to the Supreme 
Arbiter of the destinies of nations. 



THE TEXAS DECLARATION OF INDEPENDENCE. 



579 



SIGNERS OP THE DECLARATION. 

With a statement furnished by themselves during the 
Convention. 



Name. Age. 

Eichard Ellis 54 

C. B. Stewart -. . 30 

James Collinsworth 30 

Edwin Waller 35 

Asa Brigham 46 

J. S. D.Byom 38 

Frances Ruis 54 

J. Antonio Navarro 41 

J. B. Badyett 29 

W. D. Lacy 28 

William Menifee 40 

John Fisher 36 

M. Coldwell 38 

W. Motley 24 

L. D. Zavala 47 

George W. Smyth 33 

S. HrEverett 29 

E. Stapp 53 

Claiborne West 36 

W. B. Scates 30 

M. B. Menard 31 

A. B. Hardin 38 

J. W. Bunton 28 

Thomas G. Gazeley — . 35 

R. M. Coleman 37 

B. Hardiman 41 

R. Potter 36 

Thomas J. Rusk 29 

Charles S. Taylor .- 28 

John S. Roberts 40 

R. Hamilton 53 

C. McKinney 70 



Nativity. Former Besidence. 

Virginia Alabama 

South Carolina. Louisiana 

Tennessee Tennessee 

Virginia Missouri 

Massachusetts. .Louisiana 

Georgia Florida 

Texas 

Texas 

North Carolina. Arkansas Ty 

Kentucky Tennessee 

Tennessee. . . . .Alabama 

Virginia Virginia 

Kentucky Missouri 

Virginia Kentucky 

Yucatan Mexico 

North Carolina. Alabama 

New York New York 

Virginia Missouri 

Tennessee Louisiana 

Virginia Kentucky 

Canada Illinois 

Georgia Tennessee 

Tennessee. .... Tennessee 

New York Louisiana 

Kentucky Kentucky 

Tennessee Tennessee 

North Carolina. N. Carolina 
South Carolina. Georgia 

England New York 

Virginia Louisiana 

Scotland N. Carolina 

New Jersey. . . . Kentucky 



580 



BENCH AND BAR OF TEXAS. 



SIGNERS OF THE DECLARATION — Continued. 



Name. Age. 

A. H. Lattimer 27 

James Power 48 

Sam Houston 43 

David Thomas 35 

E. Com-ad 26 

Martin Palmer 58 

E. O. Legrand 33 

S.W. Blunt 28 

James Gaines. .. , 60 

W. Clark, Jr 37 

S.Pennington 27 

W. C. Crawford 31 

John Turner 34 

B. B. Goodrich 37 

G. W. Barnett 43 

J. G. Swisher 41 

Jessie Grimes 48 

Thomas Barnett — 



Nativity. Fomier Besidence. 

Tennessee Tennessee 

Ireland Louisiana 

Virginia Tennessee 

Tennessee Tennessee 

Pennsylvania ..Pennsyl'nia 

Virginia Missouri 

North Carolina. Alabama 

Georgia Georgia 

Virginia Louisiana 

North Carolina. Georgia 

Kentucky Arkansas Ty 

North Carolina. Alabama 
Norfti Carolina. Tennessee 

Virginia Alabama. 

South Carolina. Mississippi 

Tennessee Tennessee 

North Carolina. Alabama 
South Carolina. Mississippi. 



The following members were not present at the signing : 
S. C. Kobertson, George C. Childers, S. Khodes, Fisher, 
Samuel A. Maverick, John W. Bower, James D. Woods, 
Andrew Briscoe, John W. Moore ; and the following failed 
to reach the Convention in time: James Kerr, John J. Linn, 
and Juan Antonio Podilla. 



CONSTITUTION Or THE TEXAN REPUBLIC. 581 



CONSTITUTION OF THE TEXAN REPUBLIC. 



Adopted on the i7th of March, 1836 



We, the people of Texas, in order to form a government, 
establish justice, insure domestic tranquility, provide for the 
common defense and general welfare, and to secure the 
blessings of liberty to ourselves and our posterity, do or- 
dain and establish this Constitution 

ARTICLE I. 

Section 1. The powers of this government shall be 
divided into three departments, viz. : Legislative, Exe- 
cutive and Judicial, which shall remain forever, separate and 
distinct. 

Sec. 2. The Legislative power shall be vested in a Senate 
and House of Representatives, to be styled, the Congress 
of the Republic of Texas. 

Sec. 3. The members of the House of Representatives 
shall be chosen annually, on the first Monday of September 
each year, until Congress shall otherwise provide by law, 
and shall hold their offices one year from the date of their 
election. 

Sec. 4. No person shall be eligil)le to a seat in the House 
of Representatives until he shall have attained the age of 
twenty-five years, shall be a citizen of the Republic, and 
shall have resided in the county or district six months next 
preceding his election. 

Sec. 5. The House of Representatives shall not consist 
of less than twenty-four, nor more than forty members, 
until the population shall amount to one hundred thousand 
souls, after which time the whole number of representatives 
shall not be less than forty nor more than one hundred . 



582 BENCH AND BAR OF TEXAS. 

provided, however, that each county shall be entitled to at 
least one representative. 

Sec. 6. The House of Representatives shall choose their 
own speaker and other officers, and shall have the sole 
power of impeachment. 

Sec. 7. The Senators shall be chosen by districts as 
nearly equal in free population (free negroes and Indians 
excepted) as practicable, and the number of Senators shall 
never be less than one-third nor more than one-half the 
number of Representatives, and each district shall be en- 
titled. to one member and no more. 

Sec. 8. The Senators shall be chosen for the term of 
three years, on the first Monday in September — shall be 
citizens of the Republic, reside in the district for which they 
are respectively chosen at least one year before the election, 
and shall have attained the age of thirty years. 

Sec. 9. At the first session of Congress after the adop- 
tion of this Constitution, the Senators shall be divided by 
lot into three classes, as nearly equal as practicable, the 
seats of the Senators of the first class shall be vacated at 
the end of the first year, of the second class at the end of 
the second year, the third class at the end of the third year, 
in such a manner that one-third shall be chosen each year 
thereafter. 

Sec. 10. The Vice-President of the Republic shall be 
President of the Senate, but shall not vote on any question 
unless the Senate be equally divided. 

Sec. 11. The Senate shall choose all other officers of 
their body, and a President, pro tempore, in the absence of 
the Vice-President, or whenever he shall exercise the office 
of President ; shall have the sole power to try impeachments, 
and when sitting as a court of impeachment, shall be under 
oath; but no conviction shall take place without the con- 
currence of two-thirds of all the" members present. 

Sec. 12. Judgment in cases of impeachment shall only 
extend to removal from office, and disqualification to hold 
any office of li/)nor, trust or profit under this government; 
but the party shall nevertheless be liable to indictmeutj 
trial, judgment and punishment, according to law. 



CONSTITUTION OF THE TEXAN REPUBLIC. 583 

Sec. 13. Each House shall be the judge of the elections, 
qualifications and returns of its own members. Two-thirds 
of each house shall constitute a quorum to do business, but 
a smaller number may adjourn from day to day, and may 
compel the attendance of absent members. 

Sec. 14. Each House may determine the rules of its own 
proceedings, punish the members for disorderly behavior, 
and with the concurrence of two-thirds, may expel a mem- 
ber, but not a second time for the same offense. 

Sec. 15. Senators and Representatives shall receive a 
compensation for their services, to be fixed by law; but 
no increase of compensation or diminution shall take effect 
during the session at which such increase or diminution 
shall have been made. They shall, except in case of trea- 
son, felony, or breach of the peace, be privileged from 
arrest during the session of Congress, and in going to and 
returning from the same ; and for any speech or debate 
in either House they shall not be questioned in any other 
place. 

Sec. 16. Euch House may punish, by imprisonment dur- 
ing the session, any person not a member who shall be guilty 
of any disrespect to the House by any disorderly conduct in 
their presence. 

Sec. 17. Each House shall keep a journal of its proceed- 
ings, and publish the same, except such parts as, in its 
judgment, require secrecy. When any three members shall 
desire the yeas and nays on any question they shall be en- 
tered on the journals. 

Sec. 18. Neither House, without the consent of the 
other, shall adjourn for more than three days, nor to any 
other place than that in which the two houses may be sitting. 

Sec. 19. AVhen vacancies happen in either House the 
executive shall issue writs of election to fill such vacancies. 

Sec. 20. No bill shall become a law until it shall have been 
read on three several days in each House, and passed by the 
same ; unless, in cases of emergency, two-thirds of the 
members of the House where the bill originated shall deem 
it expedient to dispense with the rule. 

Sec. 21. After a bill shall have been rejected no bill con- 



584 BENCH AND BAR OF TEXAS. 

taining the same substance shall be passed into law during 
the same session. 

Sec. 22. The style of the laws of the Eepublic shall be: 
«' Be it enacted by the Senate and House of Representatives 
of the Republic of Texas in Congress assembled." 

Sec. 23. No person holding an office of profit under the 
government shall be eligible to a seat in either House of Con- 
gress, nor shall any member of either House be eligible to 
any office which may be created or the profits of which shall 
be increased during his time of service. 

Sec. 24. No holder of public moneys, or collector thereof, 
shall be eligible to a seat in either House of Congress until 
he shall have fully acquitted himself of all responsibility, 
and shall produce the proper officer's receipt thereof. 
Members of either House may protest against any act or 
resolution, and may have such protest entered on the jour- 
nals of their respective Houses. 

Sec. 25. No money shall be drawn from the public 
treasury but in strict accordance with appropriations made 
by law ; and no appropriations shall be made for private or 
local purposes, unless two-thirds of each House concur in 
such appropriations. 

Sec. 26. Every act of Congress shall be approved and 
signed by the President before it becomes a law ; but if the 
President shall not approve and sign such act he shall return 
it to the House in which it originated, with his reasons for 
not approving the same, which shall be spread upon the 
journals of each House, and the bill shall then be recon- 
sidered, and shall not become a law unless it shall then pass 
by a vote of two-thirds of both houses. If any act shall be 
disapproved by the President the vote on the reconsidera- 
tion shall be recorded by ayes and noes. If the President 
shall fail to return a bill within five days (Sundays excepted) 
after it shall have been presented for his approval and signa- 
ture the same shall become a law, unless the Congress pre- 
vents its return within the time above specified by adjourn- 
ment. 

Sec. 27. All bills, acts, orders, or resolutions to which 
the concurrence of both Houses maybe necessary (motions 



CONSTITUTION OF THE TEXAN REPUBLIC. 585 

or resolutions fo-r adjournment excepted), shall be approved 
and signed by the President, or, being disapproved, shall be 
passed by two-thirds of both Houses, in manner and form as 
specified in section twenty. 

ARTICLE II. 

Section 1. Congress shall have power to levy and collect 
taxes and imports, excise and tonnage duties, to borrow 
money on the faith, credit and property of the government, 
to pay the debts, and to provide for the common defense 
and general welfare of the Republic. 

Sec. 2. To regulate commerce, to coin money, to regu- 
late the value thereof and of foreign coin, to fix the stand- 
ard of weights and measures, but nothing but gold and 
silver shall be made a lawful tender. 

Sec. 3. To establish post-offices and post-roads, to grant 
charters of corporations, patents and copyrights, and secure 
to the authors and inventors the exclusive use thereof for 
a limited time. 

Sec. 4. To declare war, grant letters of marque and re- 
prisal, and to regulate captures. 

Sec. 5. To provide and maintain an army and navy, and 
to make all laws and regulations necessary for their govern- 
ment. 

Sec. 6. To call out the militia to execute the law, to sup- 
press insurrections and repel invasion. 

Sec. 7. To make all laws which shall be deemed necessar}'' 
and proper to carry into effect the foregoing express grants 
of power, and all other powers vested in the government of 
the Republic, or in any offices or department thereof. 

article III. 

Section 1. The executive authority of this government 
shall be vested in a chief magistrate, who shall be styled 
the President of the Republic of Texas. 

Sec. 2. The first President elected by the people shall 
hold his office for the term of two years, and shall be in- 
eligible during the next succeeding term, and all subsequent 
Presidents shall be elected for three years, and be alike in- 



586 BENCH AND BAR OF TEXAS. 

eligible ; and in the event of a tie the House of Representa- 
tives shall determine between the two highest candidates by 
viva voce vote. 

Sec. 3. The returns of the elections for President and 
Vice-President shall be sealed up and transmitted to the 
Speaker of the House of Representatives by the liolders of 
elections of each county ; and the Speaker of the House 
of Representatives shall open and publish the returns in 
presence of a majority of each House of Congress. 

ARTICLE IV. 

Section 1. The judicial powers of the government shall 
be vested in one Supreme Court, and in such inferior courts 
as the Congress may, from time to time, ordain and estab- 
lish. The judges of the Supreme and inferior courts shall 
hold their offices for four years, be ineligible to re-election, 
and shall, at stated periods, receive for their services a com- 
pensation not to be increased or diminished during the 
period for which they were elected. 

Sec. 2. The Republic of Texas shall be divided into con- 
venient judicial districts, not less than three nor more than 
eight. There shall be appointed for each district a judge, 
who shall reside in the same, and hold the courts at such 
times and places as Congress may by law direct. 

Sec. 3. In all admiralty and maritime cases, in all cases 
affecting embassitdors, public ministers or consuls, and in 
all capital cases, the District Courts shall have exclusive 
original jurisdiction, and original jurisdiction in all civil 
cases when the matter in controversy amounts to one hun- 
dred dollars. 

Sec. 4. The judges, by virtue of their offices, shall be 
conservators of the peace throughout the Republic. The 
style of all process shall be, " The Republic of Texas," 
and all prosecutions shall be carried on in the name and by 
the authority of the same, and conclude " against the peace 
and dignity of the Republic." 

Sec. 5. There shall be a district attorney appointed for 
each district, whose duties, salaries, perquisites and term 
of service shall be fixed by law. 



CONSTITUTION OF THE TEXAN EEPUBLIC. 587 

Sec. 6. The clerks of the District Courts shall be elected 
by the qualified voters for members of Congress in the 
counties where the courts are established, and shall hold 
their offices for four years, subject to removal by present- 
ment of a grand jury, and conviction of a petit jury. 

Sec. 7. The Supreme Court shall consist of a chief jus- 
tice and associate judges; the district judges shall compose 
the associate judges, a majority of whom, with the chief 
justice, shall constitute a quorum. 

Sec. 8. The Supreme Court shall have appellate jurisdic- 
tion only, which shall be conclusive, within the limits of the 
Republic ; and shall hold its sessions annually, at such times 
and places as may be fixed by law ; provided, that no judges 
shall sit in a case in the Supreme Court tried by him in the 
court below. 

Sec. 9. The judges of the Supreme and District Courts 
shall be elected by joint ballot of both houses of Congress. 

Sec. 10. There shall be in each county a County Court, 
and such justices' courts as the Congress may from time to 
time establish. 

Sec. 11. The Republic shall be divided into convenient 
counties, but no new county shall be established unless it 
be done on the petition of one hundred free male inhabit- 
ants of the territory sought to be laid off and established; 
and unless the said territory shall contain nine hundred 
square miles. 

Sec. 12. There shall be appointed for each county a con- 
venient number of justices of the peace, one sheriff', one 
coroner, and a sufficient number of constables, who shall 
hold their offices for two years; to be elected by the quali- 
fied voters of the district or county, as Congress may 
direct. Justices of the peace and sheriffs shall be commis- 
sioned by the President. 

Sec. 13. The Congress shall, as early as practicable, in- 
troduce, by statute, the common law of England, with such 
modifications as our circumstances, in their judgment, may 
require ; and in all criminal cases, the common law shall be 
the rule of decision. 



588 BENCH AND BAR OP TEXAS. 



ARTICLE V. 



Section 1. Ministers of the Gospel being, by their pro- 
fession, dedicated to God and the care of souls, ought not 
to be divested from the great duties of their functions ; 
therefore, no minister of the gospel, or priest of any de- 
nomination whatever, shall be eligible to the office of the 
executive of the Republic, nor to a seat in either branch 
of the Congress of the same. 

Sec. 2. Each member of the Senate and House of Rep- 
resentatives shall, before they proceed to business, take an 
oath to support the Constitution, as follows : — 

** I, A. B., do solemnly swear, or affirm, as the case may 
be, that, as a member of this General Congress, I will sup- 
port the Constitution of the Republic, and that I will not 
propose or assent to any bill, vote or resolution which shall 
appear to me injurious to the people." 

Sec. 3. Every person who shall be chosen or appointed 
to any office of trust or profit shall, before entering on the 
duties thereof, take an oath to support the Constitution of 
the Republic, and also an oath of office. 

ARTICLE VI. 

Section 1. No person shall be eligible to the office of 
President who shall not have attained the age of thirty-five 
years, shall be a citizen of the Republic at the time of the 
Constitution, or an inhabitant of this Republic at least three 
years immediately preceding his election. 

Sec. 2. The President shall enter on the duties of his 
office on the second Monday in December next succeeding 
his election, and shall remain in office until his successor 
shall be duly qualitied. 

Sec. 3. The President shall, at stated times, receive a 
compensation for his services, which shall not be increased 
or diminished durins: his continuance in office; and before 
entering upon the duties of his office, he shall take and sub- 
scribe the following oath or affirmation: — 

"I, A. B., President of the Republic of Texas, do sol- 
emnly swear, or affirm, as the case may be, that I will 



CONSTITUTION OF THE TEXAN REPUBLIC. 589 

faithfully execute the duties of my office, and to the best 
of my abilities preserve, protect and defend the Constitu- 
tion of the Republic." 

Sec. 4. He shall be commander-in-chief of the army and 
navy of the Republic, and the militia thereof; but he shall 
not command in person, without the authority of a resolu- 
tion of Congress. He shall have power to remit fines and 
forfeitures, and to grant reprieves and pardons, except in 
cases of impeachment. 

Sec. 5. He shall, with the advice and consent of two- 
thirds of the Senate, make treaties ; and, with the consent 
of the Senate, appoint ministers and consuls, and all officers 
whose offices are established by the Constitution, not here- 
in otherwise provided for. 

Sec. 6. The President shall have power to fill all vacan- 
cies that may happen during the recess of the Senate ; but he 
shall report the same to the Senate within ten days after the 
next Congress shall convene; and should the Senate reject 
the same, the President shall not re-nominate the same in- 
dividual to the same office. 

Sec. 7. He shall, from time to time, give Congress, in- 
formation on the state of the Republic, and recommend for 
their consideration such measures as he may deem necessary. 
He may, upon extraordinary occasions, convene both 
houses or either of them. In the event of a disagreement 
as to the time of adjournment, he may adjourn them to 
such time as he may think proper. He shall receive all 
foreign ministers. He shall see that the laws are faithfully 
executed, and shall commission all the officers of the Re- 
public. 

Sec. 8. There shall be a seal of the Republic, which shall 
be kept by the President, and used by him officially ; it 
shall be called the great seal of the Republic of Texas. 

Sec. 9. All grants and commissions shall be in the name 
and by the authority of the Republic of Texas, shall be 
sealed with the great seal, and signed by the President. 

Sec. 10. The President shall have power, by and with 
the advice and consent of the Senate, to appoint a Secretary 



590 BENCH AND BAR OF TEXAS, 

of State, and such other heads of executive departments as 
may be established by law, who shall remain in office during 
the term of service of the President, unless sooner removed 
by the President, with the advice and consent of the Senate. 

Sec. 11. Every citizen of the Republic who has attained 
the age of twenty-one years, and shall have resided six 
months within the district or county where the election is 
held, shall be entitled to vote for members of the General 
Congress. 

Sec. 12. All elections shall be by ballot, unless Congress 
shall otherwise direct. 

Sec. 13. All elections by joint vote of both Houses of 
Congress shall be viva voce, shall be entered on the journals, 
and a majority of the votes shall be necessary to a choice. 

Sec. 14. A Vice-President shall be chosen at every elec- 
tion for President in the same manner, continue in office 
for the same time, and shall possess the same qualifications 
as the President. In voting for President and Vice- 
President, the electors shall distinguish for whom the}'' vote 
as President, and for whom as Vice-President. 

Sec. 15. In cases of impeachment, removal from office, 
death, resignation, or absence of the President from the 
Republic, the Vice-President shall exercise the powers and 
discharo;e the duties of the President until a successor be 
duly qualified, or until the President, who may be absent 
or impeached, shall return or be acquitted. 

Sec. 16. The President, Vice-President, and all civil offi- 
cers of the Republic, shall be removable from office by im- 
peachment for, and on conviction of, treason, bribery, and 
other high crimes and misdemeanors. 

SCHEDULE. 

Section 1. That no inconvenience may arise from the 
adoption of this Constitution, it is declared by this convention 
that all laws now in force in Texas, and not inconsistent 
with this Constitution, shall remain in full force until de- 
clared void, repealed, altered, or expire by their own limi- 
tation. 



CONSTITUTION OF THE TEXAN REPUBLIC. 591 

Sec. 2. All tines, penalties, forfeitures, and eschejits, 
which have accrued to Coahuila and Texas, or Texas, shall 
accrue to this Republic. 

Sec. 3. Every male citizen who is, by this Constitution* 
a citizen, and shall be otherwise qualified, shall be entitled 
to hold any office or place of honor, trust, or profit under 
the Republic; anything in this Constitution to the con- 
trary notwithstanding. 

Sec. 4. The first President and Vice-President that shall 
be appointed after the adoption of this Constitution shall 
be chosen by this convention, and shall immediately enter on 
the discharge of their offices, and shall hold said offices until 
their successors be elected and qualified, as prescribed in 
this Constitution; and shall have the same qualifications, 
be invested with the same powers, and perform the same 
duties which are required and conferred on the executive 
head of the Republic by this Constitution. 

Sec. 5. The President shall issue writs of election directed 
to the officers authorized to hold elections of the several 
counties, requiring them to cause an election to be held for 
President, Vice-president, Representatives and Senators to 
Congress, at the time and in the mode prescribed by this Con- 
stitution, which elections shall be conducted in the manner 
that elections have been heretofore conducted. The Presi- 
dent, Vice-President, and members of Congress, when duly 
elected, shall continue to discharge the duties of their respec- 
tive offices for the time and in the manner prescribed by 
this Constitution until their successors be duly qualified. 

Sec. 6. Until the first enumeration shall be made, aS 
directed by this Constitution, the precinct of Austin shall 
be entitled to one representative; the precinct of Brazoria 
to two representatives ; the precinct of Bexar, two represen- 
tatives ; the precinct of Colorado, one representative ; Sa- 
bine, one; Gonzales, one; Goliad, one; Harrisburg, one; 
Jasper, one ; Jefferson, one ; Liberty, one ; Matagorda, 
one; Mina, two; Nacogdoches, two; Red River, three; 
Victoria, one ; San Augustine, two ; Shelby, two ; Refugio, 
one; San Patricio, one: Washington, two; Milam, one; 
and Jackson, one representative 



592 BENCH AND BAR OF TEXAS. 

Sec. 7. Until the first enumeration shall be made, as 
described by this Constitution, the senatorial districts shall 
be composed of the following precincts: Bexar shall be en- 
titled to one Senator ; San Patricio, Kef ugio and Goliad, 
one; Brazoria, one; Mina and Gonzales, one; Nacog- 
doches, one; Red River, one; Shelby and Sabine, one; 
Washington, one ; Matagorda, Jackson and Victoria, one ; 
Austin and Colorado, one; San Augustine, one; Milam, 
one ; Jasper and Jefferson, one ; and Liberty and Harris- 
burg, one Senator. 

Sec. 8. All judges, sheriffs, commissioners, and other 
civil officers, shall remain in office, and in the discharge of 
the powers and duties of their respective offices, until there 
shall be others appointed or elected under the Constitution. 

GENERAL PROVISIONS. 

Section 1. Laws shall be made to exclude from office, 
from the right of suffrage, and from serving on juries, those 
who shall hereafter be convicted of bribery, perjury, or 
other high crimes and misdemeanors. 

Sec. 2. Returns of all elections for officers who are to be 
commissioned by the President shall be made to the Secre- 
tary of State of this Republic. 

Sec 3. The President and heads of departments shall 
keep their offices at the seat of government, unless removea 
by permission of Congress, or unless in cases of emergency 
in time of war the public interest may require their 
removal. 

Sec. 4. The President shall make use of his private seal 
until a seal of the Republic shall be provided. 

Sec. 5. It shall be the duty of Congress, as soon as cir- 
cumstances will permit, to provide by law a general system 
of education. 

Sec. 6. All free white persons who shall emigrate to this 
Republic, and who shall, after a residence of six months, 
make oath before some competent authority that he intends 
to reside permanently in the same, and shall swear to sup- 
port this Constitution, and that he will bear true allegiance 



CONSTITUTION OF THE TEXAN REPUBLIC. 593 

to the Republic of Texas, shall be entitled to all the priv- 
ileges of citizenship. 

Sec. 7. So soon as convenience will permit, there shall 
be a penal code formed, on principles of reformation, and 
not of vindictive justice; and the civil and criminal laws 
shall be revised, digested, and arranged under different 
heads ; and all laws relating to land titles shall be trans- 
lated, revised, and promulgated. 

Sec. 8. All persons who shall leave the country for the 
purpose of evading a participation in the present struggle, 
or shall refuse to participate in it, or shall give aid or as- 
sistance to the present enemy, shall forfeit all rights of 
citizenship and such lands as they may hold in the Republic, 

Sec. 9. All persons of color wdio were slaves for life 
previous to their emigration to Texas, and who are now 
held in bondage, shall remain in the like state of servitude; 
provided, the said slave shall be bona fide property of the 
person so holding said slave as aforesaid. Congress shall 
pass no laws to prohibit emigrants from bringing their 
slaves into the Republic with them, and holding them by 
the same tenure by which said slaves were held in the United 
Stat es ; nor shall Congress have power to emancipate slaves ; 
nor shall any slaveholder be allowed to emancipate his or 
her slave or slaves without the consent of Congress, unless 
he or she shall send his or her slaves without the limits of 
the Republic. No free persons of African descent, either 
in whole or in part, shall be permitted to reside permanently 
in the Republic, without the consent of Congress ; and the 
importation or admission of Africans or negroes into this 
Republic, excepting the United States of America, is for- 
ever prohibited, and declared to be piracy. 

Sec. 10. All persons, Africans, the descendants of Afri- 
cans, and Indians excepted, who were residing in Texas on 
the day of the Declaration of Independence, shall be con- 
sidered citizens of the Republic, and entitled to all the 
privileges of such. All citizens now living in Texas, who 
have not received their portion of land, in like manner 
colonists, shall be entitled to their land in the followinsr 
projxtrtion and manner: Every head of a family shall be 
38 



594 BENCH AND BAR. OF TEXAS. 

entitled to one league and labor of land ; and every single 
man of the age of seventeen and upwards, shall be entitled 
to the third part of one league of land. All citizens who 
may have, previously to the adoption of this Constitution,, 
received their league of land as heads of i'amilies, and their 
quarter of a league of land as single persons, shall receive 
such additional quantity as will make the quantity of land 
received by them equal to one league and labor, and one- 
third of a league, unless by bargain, sale, or exchange, they 
have transferred or may henceforth transfer their right to 
said land, or a portion thereof, to some other citizen of the 
Republic; and in such case the person to whom such right 
shall have been transferred, shall be entitled to the same, as 
fully and amply as the person making the transfer might or 
could have been. No alien shall hold laud in Texas, ex- 
cept by titles emanating directly from the government of 
this Republic. But if any citizen of this Republic should 
die intestate or otherwise, his children or heirs shall inherit 
his estate, and aliens shall have a reasonable time to take 
possession of, and dispose of the same, in a manner here- 
after to be pointed out bylaw. Orphan children, whose 
parents were entitled to land under the colonization law of 
Mexico, and who now reside in the Republic, shall be en- 
titled to all the rights of which their parents were possessed 
at the time of their death. The citizens of the Republic 
shall not be compelled to reside on the land, but shall have 
their lines plainly marked. 

All orders of survey legally obtained by any citizen of 
the republic, from any legally authorized commissioner,, 
prior to the act of the late consultation closing the land 
offices, shall be valid. In all cases, the actual settler and 
occupant of the soil shall be entitled, in locating his land, 
to include his improvements in preference to all other 
claims, not acquired previous to his settlement, according 
to the law and this Constitution; provided that nothing^ 
herein contained shall i)rejudice the rights of any citizen 
from whom a settler may hold land by rent or lease. 

And whereas the protection of the public domain from 
unjust and fraudulent claims and quieting the people in the 



CON.sTITUTION OF THE TEXAN KEPUBLIC. 595 

enjoyment of their lands, is one of the great duties of this 
convention: and whereas the Legislature of Coahuila and 
Texas having passed an act in the year eighteen hundred 
and thirty-four, in behalf of General John T. Mason, of 
New York, and another on the fourteenth day of March, 
eighteen hundred and thifty-five, under which the enor- 
mous amount of eleven hundred leagues of land has been 
claimed by sundry individuals, some of whom reside in 
foreign countries, and are not citizens of the Republic; 
which said acts are contrary to articles fourth, twelfth, 
and fifteenth of the laws of eighteen hundred and twenty- 
four, of the General Congress of Mexico; and one of said 
acts, for that cause has, by said General Congress of Mex- 
ico, been declared null and void. It is hereby declared 
that the said act of eighteen hundred and thirty-four, in 
favor of John T. Mason, and of the fourteenth of March, 
eighteen hundred and thirty-five, of the said Legislature, 
of Coahuila and Texas, and each and every grant founded 
thereon, is, and was from the beginning, null and void ; 
and all surveys made under pretense of authority derived 
from said acts, are hereby declared to be null and void ; 
and all eleven league claims, located within twenty leagues 
of the boundary line between Texas and the United States 
of America; which have been located contrary to the laws 
of Mexico, are hereby declared to be null and void ; and 
whereas many surveys and titles to land have been made 
whilst most of the people of Texas were absent from home, 
serving in the campaign against Bexar, it is here declared 
that all the surveys and locations of land made since the 
act of the late consultation closing the land ofiices, and all 
titles to land made since that time, are and shall be null 
and void. 

And whereas, the present unsettled state of the country 
and the general welfare of the people demand that the 
operations of the land office, and the whole land system 
shall be suspended until persons serving in the army can 
have a fair and equal chance with those remaining at home 
to select and locate their lands, it is hereby declared, that 
no survey or title which may hereafter be made shall be 



596 BENCH AND BAR OF TEXAS. 

valid, unless such survey or title shall be authorized by this 
convention, or some future Congress of the Kepublic. 
And with a view to the simplification of the land system, 
and the protection of the people and the government from 
litigation and fraud, a general land office shall be estab- 
lished, where all the land-tillers of the Republic shall be 
registered ; and the whole territory of the Republic shall be 
sectionized in a manner hereafter to be prescribed by law, 
which shall enable the officers of the government or any 
citizen to ascertain with certainty the lands that are vacant, 
and those lands which may be covered by valid titles. 

Sec. 11. Any amendment or amendments to this Consti- 
tution maybe proposed in the House of Representatives or 
Senate, and if the same shall be agreed to by a majority of 
the members elected to each of the two Houses, such pro- 
posed amendment or amendments, shall be entered on the 
journals, with the yeas and nays therein, and referred to 
the Congress then next to be chosen, and shall be published 
for three months previous to the election ; and if the Con- 
gress next chosen as aforesaid, shall pass said amendment 
or amendments by a vote of two-thirds of all the members 
elected to each House, then it shall be the duty of sai d 
Congress to submit said proposed amendment or amend - 
ments to the people, in such manner and at such times as 
the Congress shall prescribe ; and if the people shall ap- 
prove and ratify such amendment or amendments by a 
majority of the electors qualified to vote for members of 
Congress voting thereon, such amendment or amendments 
shall become a part of this Constitution; provided, how- 
ever, that no amendment or amendments be referred to the 
people oftener than once in three years. 

DECLARATION OF RIGHTS. 

This declaration of rights is declared to be a part of this 
Constitution, and shall never be violated under any pretext 
whatever. And in order to guard against the transgression 
of the high powers which we have delegated, we declare that 
everything in this bill of rights contained, and every othor 
right not hereby delegated, is reserved to the people. 



CONSTITUTION OF THE TEXAN ItEl'LJBLIC. 597 

1st. All men, when they form a social compact, have 
equal rights, and no man or set of men are entitled to exclu- 
sive public privileges or indorsements from the community. 

2d. All political power is inherent in the peoi)le, and all 
free governments are founded on their authority, and insti- 
tuted for their benefit; and they have at all times an ina- 
Menable right to alter their government in such a manner as 
they may think proper. 

3d. No preference shall be given by law to any religious 
denomination or mode of worship over another, but every 
person shall be permitted to worship God according to the 
dictates of his own conscience. 

4th. Every citizen shall be at liberty to speak, write or 
publish his opinion on any subject, being responsible for 
the abuse of that privilege. No law shall ever be passed to 
curtail the liberty of speech or of the press; and in all 
prosecutions for libel, the truth may be given in evidence, 
and the jury shall have the right to determine the law and 
act under the direction of the court. 

5th. The people shall be secure in their persons, houses, 
papers and possessions, from all unreasonable searches or 
seizures and no warrant shall issue to search any place or 
seize any person or thing, without describing the place to 
be searched or the person or thing to be seized, without 
probable cause, supported by oath or affirmation. 

6th. In all criminal prosecutions, the accused shall have 
the right of being heard, by himself, or counsel, or both; 
he shall have the right to denounce the nature and cause of 
the accusation, shall be confronted with the witnesses against 
him, and have compulsory process for obtaining witnesses 
in his favor. And in all prosecutions by presentment or 
indictment, he shall have the right to a speedy and public 
trial by an impartial jury ; he shall not be compelled to give 
evidence against himself, or be deprived of life, liberty or 
property, but by due course of law. And no freeman shall 
be holden to answer for any criminal charge, but on present- 
ment or indictment by a grand jury, except in the land and 
naval forces, or in the militia when in actual service in time 
of war or public danger, or in cases of impeachment. 



598 



BENCH AND BAR OF TKXAS. 



7th. No citizen shall be deprived of privileges, outlawed, 
exiled, or in any manner disfranchised, exceptby due course 
of the law of the land. 

8th. No title of nobility, hereditary privileges or honors, 
shall ever be granted or conferred in this republic. No 
person holding any office of profit or trust shall, without the 
consent of Congress, receive from any foreign State any 
present, office, or emolument of any kind. 

9th. No person, for the same offense, shall be twice put 
in jeopardy of life or limb. And the right of trial by jury 
shall remain inviolate. 

10th. All persons shall be bailable by sufficient security, 
unless for capital crimes, when the proof is evident or pre- 
sumption strong, and the privilege of the writ of habeas 
corpus shall not be suspended, except in cases of rebel- 
lion or invasion, when the public safety may require it. 

11th. Excessive bail shall not be required, nor exces- 
sive fines imposed, or cruel or unusual punishments inflicted. 
All courts shall be open, and every man for any injury done 
him in his lands, goods, person, or reputation, shall have 
remedy by due course of law. 

12th. No person shall be imprisoned for debt in conse- 
quence of inability to pay. 

13th. No person's particular services shall be demanded, 
nor property taken or applied to public use, unless by the 
consent of himself or his representative, without just com- 
pensation being made therefor according to law. 

14th. Every citizen shall have the right to bear arms in 
defence of himself and the Eepublic. The military shall 
at all times and in all cases be subordinate to the civil power. 
15th. The sure and certain defense of a free people is a 
well regulated militia ; and it shall be the duty of the Leg- 
islature to enact such laws as may be necessary to the mil- 
Hia of this Eepublic. 

16th. Treason against this Eepublic shall consist only 
in bringing war against it, or adhering to its enemies, giv- 
ing them aid and support. No retrospective or ex posi 
facto law, or laws imparing the obligations of contracts 
shall be made. 



CONSTITUTION OF THE TEXAN KEPUBLIC. 



599 



17th. Perpetuities or monopolies jire contrary to tlie 
sreniiis of a free government and !?hall not be allowed; nor 
shall any law of primogeniture or entailment ever be in 
force in this Republic. 



JMRMBERS OP THE CONVENTION WHICH ADOPTED THE CONSTI- 
TUTION OF THE TEXAN REPUBLIC. 



Name. 
Ei chard Ellis, 
C B. Stewart, 
John S. Roberts, 
James Collingsworth, 
Robert Hamilton, 
Edwin Waller, 
Collin McKinney, 
A. Brigham, 
A. H. Latimer, 
John S. D. Byrom, 
James Power, 
Francis Ruis, 
Sam Houston, 
J. Antonio Navarro, 
Edwin Conrad, 
William D. Lacy, 
Martin Palmer, 
William Menifee, 
James Gains, 
John Fisher, 
William Clark, Jr., 
Matthew Caldwell, 
Sydney F. Pennington, 
AVilliam Motley, 
Samuel P. Carson, 
Lorenzo D. Zavala, 
*rhomas J. Rusk, 
Stephen W. Blunt, 

Charles 



Name. 
George W. Smith, 
William C. Crawford, 
Stephen H. Everett, 
John Turner, 
Elijah Stepp, 
Benjamin B. Goodrich, 
Claiborne West, 
James G. Swisher, 
William B. Leates, 
George Wm. Barnett, 
M. B. Menard, 
Jesse Grimes, 
A. B. Hardin, 
E. O. Legrand, 
John W. Bunton, 
David Thomas, 
Thomas J. Gazley, 
S. Rhodes Fisher, 
R. M. Coleman, 
John W. Boraer, 
Sterling C. Robertson, 
J. B. Woods, 
George C. Childress, 
A. Briscoe, 
Baily Hardeman, 
Thomas Barnett, 
Robert Potter, 
Jesse B. Badgett, 
Taylor. 



600 BENCH AND BAR OF TEXAS. 



ANNEXATION OF TEXAS. 



CONDITIONAL CONSENT OF THE CONGRESS OF THE UNITED 

STATES. 

Resolved^ by the Congress of the United States of America 
in Congress assembled. 

1. That Congress doth consent that the territory properly 
included within, and rightly belonging to the Kepublic of 
Texas, may be erected into a new State, to be called the 
State of Texas, with a republican form of government, to 
be adopted by the people of said Republic, by deputies in 
convention assembled, with the consent of the existino; gov- 
ernment, in order that the same may be admitted as one of 
the States of the Union. 

2. And be it further resolved. That the foregoing consent 
of Congress is given upon the following conditions, and 
with the following; guarantees to wit : First. Said State 
to be formed, subject to the adjustment by this government 
of all questions of boundary that may arise with other 
governments ; and the Constitution thereof, with the proper 
evidence of its adoption by the people of said Republic of 
Texas, shall be transmitted to the President of the United 
States, to be laid before Congress for its final action, on 
or before the first day of January, one thousand eight hun- 
dred and forty-six. Second. Said State, when admitted 
into the Union, after ceding to the United States all public 
edifices, fortifications, barracks, ports and harbors, navy 
and navy-yards, docks, magazines, arms, armaments, and 
all other property and means pertaining to the public de- 
fense belonging to the said Republic of Texas, shall retain 
all the public funds, debts, taxes, and dues of every kind, 
which may belong to, or be due and owing to said Republic; 



ANNEXATION OF TEXAS. 601 

and shall also retain all the vacant and unappropriated 
lands lying within its limits, to be applied to the payment 
of the debts and liabilities of said Republic of Texas, and 
the residue of said lands, after discharging said debts and 
liabilities, to be disposed of as said State may direct; but 
in no event are said debts and liabilities to become a charge 
upon the government of the United States. Third. New 
States, of convenient size, not exceeding four in number, 
in addition to said State of Texas, and having sufficient 
population, may, hereafter, by the consent of said State, 
be formed out of the territory thereof, which shall be en- 
titled to admission under the provisions of the Federal Con- 
stitution. And such States as may be formed out of that 
portion of said territory lying south of thirty-six degrees 
thirty minutes north latitude, commonly known as the Mis- 
souri Compromise Line, shall be admitted into the Union, 
with or without slavery, as the people of each State asking 
admission may desire. And in such State or States as 
shall be formed out of said territory north of said Missouri 
Compromise Line, slavery, or involuntary servitude (ex- 
cept tor crime), shall be prohibited. 

3. And be it further resolved, That if the President of 
the United States shall, in his judgment and discretion, 
deem it most advisable, instead of proceeding to submit the 
'foregoing resolution to the Republic of Texas, as an over- 
ture on the part of the United States for admission, to 
negotiate with that Republic ; then 

Be it resolved, That a State, to be formed out of the 
present Republic of Texas, with suitable extent and bound- 
aries, and with two Representatives in Congress, until the 
next apportionment of representation, shall be admitted into 
the Union, by virtue of this act, on an equal footing with 
the existing States, as soon as the terms and conditions of 
such admission, and the cession of the remaining Texan 
territory to the United States shall be agreed upon by the 
governments of Texas and the United States. And that 
the sum of one hundred thousand dollars be, and the same 
is hereby, a[)[)ropriated to defray the expenses of missions 
and negotiations, to agree upon the terms of said admission 



(302 BENCH AND BAR OF TEXAS. 

and cession, either by treaty to be submitted to the Senate, 
or by articles to be submitted to the two Houses of Con- 
gress, as the President may direct. 
Approved, March 1, 1845. 



ACCEPTANCE OF THE CONDITIONS OF ANNEXATION BY THE 
CONGRESS OF THE REPUBLIC. 

Whereas, The government of the United States hath 
proposed the following terms, guarantees, and conditions, 
on which the people and territory of the Republic of Texas 
may be erected into a new State, to be called the State of 
Texas, and admitted as one of the States of the American 
Union, to wit (the first and second sections of the forego- 
ing proposition); 

And, Whereas, by said terms, the consent of the existing 
government of Texas is required, therefore : — 

Section 1. Be it resolved hy the Senate and House of 
Representatives of the Republic of Texas in Congress assem- 
bled, That the Government of Texas doth consent, that the 
people and territory of the Republic of Texas may be erected 
into a new State, to be called the State of Texas, with a 
republican form of government, to be adopted by the peo- 
ple of said Republic, by deputies in convention assembled, 
in order that the same may be admitted as one of the States 
of the American Union ; and said consent is given on the 
terms, guarantees, and conditions set forth in the preamble 
to this joint resolution. 

Sec. 2. Be it further resolved. That the proclamation of 
the President of the Republic of Texas, bearing date May 
fifth, eighteen hundred and forty-five, and the election of 
deputies to sit in convention at Austin, on the fourth day 
of July next, for the adoption of a Constitution for the 
State of Texas, had in accordance therewith, hereby receives 
the consent of the existing government of Texas. 

Sec. 3. Be it further resolved. That the President of 
Texas is hereby requested immediately to furnish the Gov- 
ernment of the United States, through their accredited min- 



ANNEXATION OF TEXAS. 603 

ister near this government, with a copy of this joint 
resohition ; also to furnish the convention to assemble at 
Austin, on the fourth of July next, a copy of the same. 
And the same shall take effect from and after its passage. 
Approved, June 23d, 1845. 



ASSENT OF THE PEOPLE OF THE REPUBLIC IN CONVENTION. 

W/tereas, The Congress of the United States of America 
has passed resolutions providing for the annexation of 
Texas to that Union, which resolutions were approved by 
the President of the United States on the first day of March, 
one thousand eight hundred and forty- five ; and, lohereas^ 
the President of the United States has submitted to Texas 
the first and second sections of the said resolution as the 
basis upon which Texas may be admitted as one of the 
States of the said Union; and, whereas, the, existing govern- 
ment of the Republic of Texas has assented to the proposals 
thus made, the terms and conditions of which are as fol- 
lows (quoting the first and second sections of the resolu- 
tion) : 

Now, in order to manifest the assent of the people of 
this Republic as required in the above recited portions of 
the said resolution ; We, the deputies of the people of Texas 
in convention assembled, in their name, and by their 
authority, do ordain and declare, that we assent to, and 
accept the proposals, conditions, and guarantees contained 
in the first and second sections of the resolution of the 
Congress of the United States aforesaid. 

Done in the City of Austin, Republic of Texas, July 4, 
1845. 

Phil M. Cuny, H. G. Runnels, Robert M. Forbes, Sam 
Lusk, John Caldwell, Jose Antonio Navarro, Geo. Wm. 
Brown, Gustavus A. Everts, Lemuel Dale Evans, J. B. 
Miller, R. E. B. Baylor, J. S. Mayficld, R. Bache, James 
Love, Wm. L. Hunter, John D. Anderson, Isaac Parker, 
P. A. Lumpkin, Francis Moore, Jr., Isaac W. Biashear, 
Alexander McGowan, Isaac Van Zandt, S. Holland, Edward 



604 BENCH AND BAR OF TEXAS. 

Clark, Geo. W. Smyth, James Armstrong, John M. Lewis, 
James Scott, Archibald McNeill, A. C. Horton, Israel 
Standefer, Jos. L. Hogg, Chas. S. Taylor, David Gage, 
Henry J. Jewett, Conit Armstrong, James Power, Albert 
H. Latimer, Wm. C. Young, J. Pinckney Henderson, 
Nicholas H. Darnell, Emery Rains, A. W. O. Hicks, James 
M. Burroughs, H. L. Kinney, Wm. L. Cazneau, A. S. 
Cunningham, Abner S. Lipscomb, John Hemphill, Van R. 
Irion, Volney E. Howard, E. H. Tarrant, Francis M. 
White, James Davis, George T. Wood, G. W. Wright, H. 
R. Latimer, W. B. Ochiltree, Oliver Jones, B. C. Bagby, 
Chas. Bellinger Stewart. 

Attest : James H. Raymond, 

Secretary of the Convention, 



admission of TEXAS INTO THE UNION DECEMBER 29, 1845. 

Whereas, The Congress of the United States, by a joint 
resolution, approved March the first, eighteen hundred and 
forty-five, did consent that the territory properly included 
within and rightfully belonging to the Republic of Texas, 
might be erected into a new State, to be called the State of 
Texas, with a republican form of government, to be adopted 
by the people of said Republic, by deputies in convention 
assembled, with the consent of the existing government, 
in order that the same might be admitted as one of the 
States of the Union ; which consent of Congress was given 
upon certain conditions specified in the first and second sec- 
tions of said joint resolution ; 

And Whereas, The people of said Republic of Texas, 
by deputies in convention assembled, with the consent of 
the existing government, did adopt a Constitution and erect 
a new State with a republican form of government, and, in 
the name of the people of Texas, and by their authority, 
did ordain and declare that they assented to and accepted 
the proposals, conditions, and guarantees contained in said 
first and second sections of said resolution ; 

And Whereas, The said Constitution, with the proper 



ANNEXATION OF TEXAS. 605 

evidence of its adoption by the people of the Republic of 
Texas, has been transmitted to the President of the United 
States and laid before Congress, in conformity to the pro- 
visions of said joint resolution ; therefore, 

1. Be it resolved hy the Senate and House of Representa- 
iives of the United States of America in Congress assem- 
bled. That the State of Texas shall be one, and is hereby 
declared to be one, of the United States of America, and 
admitted into the Union on an equal footing with the orio-- 
inal States in all respects whatever. 

2. And be it further resolved, Tbat until the Represen- 
tatives in Congress shall be apportioned according to an 
actual enumeration of the inhabitants of the United States, 
the State of Texas shall be entitled to choose two Represen- 
tatives. 



CHAPTER X. 



JUDICIAL DATA. 

The Constitution of the Republic of Texas required the 
Supreme Court to consist of a chief justice and associate 
judges; the district judges composed the associate judges, 
a majority of wliom, with the chief justice, sitting in banc, 
constituted the Supreme Court. 

Chief Justices of the Republic — James Collinsworth, 
Johu Birdsidl, Thomas J. Rusk and John Hemphill. The 
first two did not hold any term of the court. 

District Judges during the Republic — Shelby Corzin^ 
Benjamin C. Franklin, R. M. Williamson, James W. Rob- 
inson, Edward T. Branch, John T. Mills, Ezekiel W. Cullen, 
Henry W. Fontaine, John Scott, Anthony B. Shelby, 
William J. Jones, John Hemphill, Richard Scurry, John M. 
Hansford, R. E. B. Baylor, Anderson Hutchinson, George 
W. Terrill, Thomas Johnson, Patrick C. Jack, Richard 
Morris, WilHamB. Ochiltree, William E. Jones, M. P. 
Norton, John B. Jones, R. T. Wheeler. 

Attorneys-General of the Republic — David Thomas, 
Peter W^. Grayson, J. Pickney Henderson, John Birdsall, 
A. S. Thurston, J. C. Watrous, James Webb, F. A. Morris, 
George W. Terrill, Ebenezer Allen. 

JUDGES OF THE SUPREME COURT OF THE STATE OF TEXAS. 

1 84(i — John Hemphill, chief justice ; Abner S. Lipscomb, 
Royal T. Wheeler, associates. Judge Lipscomb died in 
in 1856, and was succeeded by O. M. Roberts. 

1858 — Royal T. Wheeler, chief justice. Hemphill suc- 
ceeded by James H. Bell, and O. M. Roberts by George F. 
Moore. 

( 006 ) 



JUDICIAL DATA. ()07 

1864 — O. M. Roberts, chief justice, succeeds Wheeler, 
and Bell is succeeded by Reuben A. Reeves. 

1866 — George F. Moore, chief justice; Richard Cooke, 
S. P. Donley, Asa H. Willie, and George W. Smith, asso- 
ciates. These were all removed in 1867 as impediments to 
reconstruction, and the following were appointed by mili- 
tary authority : — 

1867 — Amos Morrill, chief justice; Livingston Lindsay, 
Albert H. Latimer, Colbert Cold well and Andrew J. Ham- 
ilton, associates. Moses Walker succeeded Hamilton in 
1869, and James Denison succeeded Latimer in 1870. 

1870 — Under the Constitution of 1869, Lemuel D. 
Evans, chief justice; Moses Walker and Wesley Ogden, 
associates. In 1873 Evans was succeeded by I. D. McAdoo, 
and Ogden was made presiding judge. 

1874 — O. M. Roberts, chief justice (reorganization of 
the court) ; Reuben A. Reeves, Thomas J. Divine, George 
F. Moore, William P. Ballinger, associates. Judge Bal- 
linger resigned immediately, and was succeeded by Peter 
W. Gray, who also resigned in a few months, and was 
succeeded by Robert S. Gould, and, in 1875, John 
Ireland was elected to succeed Divine under the new 
Constitution. 

1876 — O. M. Roberts, chief justice; George F. Moore 
and Robert S. Gould, associates. 

1878 — George F. Moore, chief justice; Robert S. Gould 
and Micajah H. Bonner, associates. 

1881 — Robert S. Gould, chief justice ; Micajah H. Bon- 
ner, John W. Stayton, associates. 

1882-1885— Asa H. Willie, chief justice; John W. 
Stayton, Charles S. West, associates. 

JUDGES OF THE COURT OF APPEALS. 

1876 — M. D. Ector, presiding judge; C. M. Winkler, 
George Clark, associates. 

1879-1885 — Jolin P. White, presiding judge; James M. 
Hurt, Samuel M. Willson, associates. 



608 BENCH AND BAR OF TEXAS. 



JUDGES OF THE COURT OF COMMISSION OF APPEALS WHICH 
WAS ESTABLISHED IN 1881 AND RECREATED IN 1883. 

1881 — Richard S. Walker, presiding judge; George 
Quinan, A. S. Walker, associates. Quiiian resigned in 
1832, and was succeeded by W. S. Delaney, and A. S. 
Walker by A. T. Watts. 

1885 — Richard S. Walker, presiding Judge; A. T. 
Watts, W. S. Delaney, associates. 

ATTORNEYS-GENERAL OF THE STATE. 

1846-1885— John W. Harris, 1846; Andrew J. Hamil- 
ton, acting, 1849 ; Ebenizer Allen, 1851 ; Thomas J. 
Jenings, 1852; James Willie, 1856; Malcolm D. Graham, 
1859 ; George Flournoy, 1860 ; N. G. Shelly, 1862 r B. E. 
Turner, 1864; WiUiam M. Walton, 1866; William Alexan- 
der, 1867 ; Ezekiel B. Turner, 1868 ; William Alexander, 
1870; George Clark, 1874; H. H. Boone, 1876; G. Mc- 
Cormick, 1878 ; J. H. McLeary, 1880; John D. Templeton, 
1882, re-elected in 1884. 



Alphabetical List of Biographies. 



Allen, Ebenezer 
Anderson, J. M. 
Ballinger, W. p. 
Battle, N. W. . 
Baylor, R. E. B. 
Bell, J. II. 
Bonner, M. H. . 
Brewster, H. P. 
Clark, George 
Coke, Richard . 
Dallam, Jaivies W. 
Delaney, W. S. 
Devine, Thos. J. 
Donley, S P. . 
Ddval, Thos. H. 
EcTOu, M. D. . 
Evans, L. D. 
Franklin, Benjamin C 

GOLDTHWAITE, GeORGE 

Gould, R. S. 
Gray, Peter W. 
Hamilton, A. J. 
Hancock, John 
Harris, J. W. . 
Harrison, Thos. 
Hartley, O. C. 
Hemphill, John 
Henderson, J. P. 
Herndon, W. S. 
Herring, M. D. 
Howard, Volney E 
Hubbard, R. B. 
^URT, J. M. 
Hutchinson, A. 
Ireland, John . 
30 



(COO) 



^ 



(510 



BENCH AND BAR OF TEXAS. 



Jack, Wm, H. . 
Jack, Thos. McK. 
Jennings, Thos. H. 
Lipscomb, A. S. 
/sMooRE, G. F. . 
MoKRiLL, Amos 
Morris, Richard 
Ochiltree, W. B. 
Oldham, W. S. 
Pease, E. M. . 
Peeler, A. J. . 
Reagan, J. H. . 
Roberts, O. M. 
Rusk, Thos. J. . 
Nayles, John 
Scurry, Richardson 
Sexton, Frank . 
Shelley, N. G. . 
Shepard, J. E. 
Stayton, J. W. 
Stewart, Charles 
Terrell, A. W. 
Throckmorton, J. W 
Turner, E. B. . 
Todd, W. S. 
Waelder, Jacob 
Walker, R. S. . 
Walker, A. S. . 
Walton, Wm. M. 
Watts, A. T. 
Waul, Thos. N. 
Webb, James 
West, C. S. . 
Wharton, J. A. 
Wheeler, R. T. 
White, Alex. . 
White, J. P. 
Williamson, R. M. 
Willie, James . 
Willie, A. H. . 

WiLLSON, S. A. 

Winkler, C. M. 



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